[2000] KECA 395 (KLR)
The Court of Appeal held that the record of appeal was filed outside the 60-day period permitted by the rules, and no leave of court was sought or obtained for the late filing. The appellant, through counsel, conceded this procedural default. As a result, the appeal was incompetent and could not be entertained by...
Source-derived case information.
- Citation
- [2000] KECA 395 (KLR)
- Parties
- Appellant: Guilders International Bank Ltd; Respondent: Chimanlal Hilji Shah & 19 Others; Respondent: Carnation Apartments Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 112 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Timelines, Record of Appeal Filing, Leave of Court, Striking Out Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Guilders International Bank Ltd
Appellant
Chimanlal Hilji Shah & 19 Others
Respondent
Carnation Apartments Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
Legal Issues
- 1 Whether the appeal was filed within the prescribed time limit under the rules of court.
- 2 Whether leave of court was required and obtained for late filing of the record of appeal.
- 3 Whether the appeal is competent in the absence of compliance with procedural requirements.
Ratio Decidendi
The Court of Appeal held that the record of appeal was filed outside the 60-day period permitted by the rules, and no leave of court was sought or obtained for the late filing. The appellant, through counsel, conceded this procedural default. As a result, the appeal was incompetent and could not be entertained by the court. The court therefore ordered that the appeal be struck out with costs to the respondents, both for the application and the appeal itself.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs to the respondents for both the application dated 17th September, 1999 and the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, BOSIRE & OWUOR JJ.A)
CIVIL APPEAL NO.112 OF 1999
BETWEEN
GUILDERS INTERNATIONAL BANK LTD ....................... APPELLANT
AND
CHIMANLAL HILJI SHAH & 19 OTHERS
CARNATION APARTMENTS LIMITED ..........................RESPONDENTS
(Appeal from the ruling of the high Court of Kenya at
Nairobi by (Justice M. Ole Keiwua) dated 5th
February, 1999
in
H.C.C.C. No.343 of 1998)
****************
RULING OF THE COURT
The decision appealed against was given on 5th February, 1999. The appellant filed a notice of appeal declaring its intention to appeal against it on 17th February, 1999.
However, the record of appeal was not lodged in court until 4th June 1999; well out of the 60 days permitted for doing so and without leave. Consequently the appeal is incompetent. Mr Omolo for the appellant concedes this fact, with the result that the appeal is ordered struck out with costs both of the application dated 17th September, 1999 and the appeal.
Dated and delivered at Nairobi this 9th day of February, 2000
R.O. KWACH
............
JUDGE OF APPEAL
S.E.O. BOSIRE
..............
JUDGE OF APPEAL
M. KEIWUA
..............
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR