[2021] KECA 652 (KLR)
The court held that since the notice of appeal dated 22nd October 2018, which formed the foundation of the respondent's appeal, had already been struck out in Civil Application No. 110 of 2018, the current appeal was rendered incompetent. Without a valid notice of appeal, the appeal could not stand and was therefore...
Source-derived case information.
- Citation
- [2021] KECA 652 (KLR)
- Parties
- Applicant: Hanos [Kenya] Limited; Respondent: Dhiren Mohalal Shah
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application 64 of 2019
- Procedural Posture
- Civil Application / Application for Striking Out Appeal
- Outcome
- application allowed; appeal struck out with costs to applicant
- Judges
- RN Nambuye, MSA Makhandia, S ole Kantai
- Legal Topics
- Striking Out Appeal, Record of Appeal Requirements, Notice of Appeal, Leave to Appeal, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hanos [Kenya] Limited
Applicant
Dhiren Mohalal Shah
Respondent
Procedural Posture
Civil Application / Application for Striking Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to include essential documents in the record of appeal.
- 2 Whether the appeal is incompetent due to the striking out of the foundational notice of appeal.
- 3 Whether the appeal constitutes an abuse of the court process.
Ratio Decidendi
The court held that since the notice of appeal dated 22nd October 2018, which formed the foundation of the respondent's appeal, had already been struck out in Civil Application No. 110 of 2018, the current appeal was rendered incompetent. Without a valid notice of appeal, the appeal could not stand and was therefore liable to be struck out. The court found it unnecessary to address the other grounds raised in the application, as the removal of the foundational notice of appeal was dispositive of the matter. The application to strike out the appeal was allowed, and the appeal was struck out with costs to the applicant.
Court Disposition
application allowed; appeal struck out with costs to applicant
Orders
- The respondent's appeal filed on 20th June 2019 is struck out.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
CORAM: NAMBUYE, ASIKE- MAKHANDIA & KANTAI, JJA
CIVIL APPLICATION NO. 64 OF 2019
BETWEEN
HANOS [KENYA] LIMITED...................................................................................APPLICANT
AND
DHIREN MOHALAL SHAH...............................................................................RESPONDENT
(Being an application for striking out the Appeal against the judgment and decision of the
Environment & Land Court at Mombasa (Yano, J.) dated 18thOctober 2018in Mombasa
ELC. NO. 52 OF 2016 (Formerly Misc. Civil Application No. 667OS of 2009)
**********************************************
RULING OF THE COURT
Before us is a notice of motion dated 19th July 2019 brought under Rules 84and 87 (1), (h), (i), (j) and (k) of the Court of Appeal Rules, seeking orders that:
“1. The respondent’s appeal filed on 20thJune 2019 be struck out on the grounds that no appeal lies and that the following essential steps as required under the Court of Appeal Rules have not been taken or have not been taken within the prescribed time in that:-
(a) The Record of Appeal herein does not contain the following documents:-
(i) A duly lodged Notice of Appeal;
(ii) A certified copy of the decree;
(iii) An order granting leave to appeal.
(b) The Appeal as filed is otherwise an abuse of the process of the Court as the same has been filed despite there being a pending notice of motion dated 15thNovember 2018 seeking to strike out the Notice of Appeal dated 22ndOctober 2018 that is still pending hearing.
The application is supported by grounds on its face, a supporting and supplementary affidavits sworn by Ushwin Khanna. The application is opposed through the Replying Affidavit of Peter Mutuku Mbithi sworn on 22nd October 2020.
We however find no need to go into the merits of the application since Civil Application No. 110 of 2018 Hanos (K) Ltd v Dhiren Mohalal Shah referred to as one of the grounds in support of this application has since been heard and determined. This court upon hearing the said application interpartes ordered the striking out of the Notice of Appeal dated 22nd October, 2018. It is that notice of appeal that was the foundation of this appeal. The foundation having been removed, the appeal stands on quicksand. It is in fact incompetent and liable to be struck out.
Accordingly the application is allowed with the consequence that the respondent’s appeal filed on 20th June 2019 be and is hereby struck out with costs to the applicant.
DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF APRIL, 2021.
R. N. NAMBUYE
....................................
JUDGE OF APPEAL
ASIKE- MAKHANDIA
....................................
JUDGE OF APPEAL
S. ole KANTAI
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR