[2007] KECA 303 (KLR)
The Court found that the respondent had failed to file the record of appeal for about nine years after lodging the notice of appeal, and there was no appearance or explanation for the delay. The Court held that such inordinate and unexplained delay is sufficient ground to strike out the notice of appeal. The...
Source-derived case information.
- Citation
- [2007] KECA 303 (KLR)
- Parties
- Applicant: Grace Wakonyo Thiongo; Respondent: Gitau Tiria
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 55 of 2004
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of appeal struck out. Costs to the applicant.
- Judges
- J Wakiaga
- Legal Topics
- Appeals Process, Notice of Appeal, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wakonyo Thiongo
Applicant
Gitau Tiria
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out due to failure to file the record of appeal within the prescribed time period.
Ratio Decidendi
The Court found that the respondent had failed to file the record of appeal for about nine years after lodging the notice of appeal, and there was no appearance or explanation for the delay. The Court held that such inordinate and unexplained delay is sufficient ground to strike out the notice of appeal. The application to strike out the notice of appeal was therefore allowed, and costs were awarded to the applicant.
Court Disposition
Application allowed. Notice of appeal struck out. Costs to the applicant.
Orders
- The notice of appeal lodged on 30th November, 1998 is struck out.
- The costs of this application shall be paid by the respondent to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA PEAL AT NAIROBI
Civil Appli 55 of 2004
GRACE WAKONYO THIONGO ………..……….. APPLICANT
AND
GITAU TIRIA …………………………..…….….RESPONDENT
(Application to strike out notice of appeal in the intended appeal from the ruling of the High Court of Kenya irobi (O’Kubasu, J) dated 18th November, 1998in H.C.SUCCESSION CAUSE NO. 2386 OF 1996)
*******************
RULING OF THE COURT
This application by Motion dated 11th May, 2004 seeking the striking out of the Notice of Appeal lodged on 30th November, 1998 by the respondent Grace Wakonyo Thiongo is hereby allowed as the Record of Appeal has not been filed despite the passage of nine years or so since the lodging of the Notice of Appeal.
There was no appearance before us by the respondent despite the due service of the notice of motion and the hearing notice for today. The costs of this application shall be paid by the respondent to the applicant.
Dated and delivered at Nairobi this 23rd day of May, 2007.
P. K. TUNOI
………………………
JUDGE OF APPEAL
P. N. WAKI
……………………….
JUDGE OF APPEAL
W. S. DEVERELL
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR