[2004] KECA 52 (KLR)
The Court held that the applicants failed to demonstrate that the proceedings in the superior court were civil in nature. Since the proceedings originated in the Criminal Division and concerned matters under the Narcotic Drugs and Psychotropic Substances (Control) Act, the matter was deemed criminal. In criminal...
Source-derived case information.
- Citation
- [2004] KECA 52 (KLR)
- Parties
- Applicant: Humphrey Kariuki; Applicant: Crucial Properties Limited; Respondent: Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 373 of 2002
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out Notice of Appeal, Timeliness of Appeal, Nature of Proceedings, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Humphrey Kariuki
Applicant
Crucial Properties Limited
Applicant
Attorney General
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the proceedings in the superior court were civil or criminal in nature.
- 2 Whether the application to strike out the notice of appeal is properly before the Court of Appeal.
- 3 Whether the failure to file an appeal within the prescribed time renders the notice of appeal spent.
Ratio Decidendi
The Court held that the applicants failed to demonstrate that the proceedings in the superior court were civil in nature. Since the proceedings originated in the Criminal Division and concerned matters under the Narcotic Drugs and Psychotropic Substances (Control) Act, the matter was deemed criminal. In criminal appeals, the responsibility for preparing the record of appeal lies with the Registrar, not the parties, and the application to strike out the notice of appeal was therefore misconceived. The Court dismissed the application with costs, finding that it had no jurisdiction to entertain the application in the context of a criminal matter.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the notice of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, TUNOI & O’KUBASU, JJ.A)
CIVIL APPLICATION NO. NAI. 373 OF 2002
BETWEEN
1. HUMPHREY KARIUKI
2. CRUCIAL PROPERTIES LIMITED …......…………….…………..….APPLICANTS
AND
ATTORNEY GENERAL …..………......….RESPONDENT/INTENDED APPELLANT
(Application to strike out Notice of Appeal filed on 10th May, 2001in an intended appeal from the decision and order of the High
Court of Kenya at Nairobi (Oguk, J.) dated 10. 5.2001
in
H.C.MISC. APPL. NO. 174 OF 2001)
**************************************
RULING OF THE COURT
This is an application under rules42, 43(1), 80, 81(1) and 82(a) of the Court of Appeal rules, the Rules, to strike out the notice of appeal lodged in Court on 10th May, 2001, by the Attorney General on the ground that an essential step in the proceedings has not been taken.
The application alleges that the respondent has not filed his appeal within the time prescribed by the Rules and therefore the notice of appeal is now spent and of no consequence and the same ought to be struck out.
Before Miss Mugo for the applicants urged her application we pointed out to her that it was not clear from the record before us whether the proceedings in the superior court were criminal or civil in nature. We did this because the proceedings in that court were held in itsCriminal Division and the number assigned to the application before it is Criminal ApplicationNo. 174 of 2001. The matter complained of was grounded on some sections of theNarcoticDrugs and Psychotropic Substances (Control) Act , No. 4 of 1994 as read with Legal Notice No. 40 of 2001.
Further, in his ruling dated 3rd April, 2001, Oguk J. held: -
“The conclusion to which I have reached is that this matter is properly before this Court and that a Criminal Division of thisCourt is properly seized of the matter.”
Why we sought clarification whether the matter in essence is criminal or civil should be obvious. If it is civil then the application is properly before us and we can entertain it. If the matter in issue is criminal then it is misconceived since the preparation, in the main, of criminal appeal lies squarely on the shoulders of the Registrar of the superior court. Rule 61 (1)of the Rules states as follows: -
“As soon as practicable after a notice of appeal has been lodged, the registrar of the superior court shall prepare the record of appeal.”
It is apparent therefore that in a criminal matter on appeal a party plays a minimal role in the preparation of his appeal after he has lodged a notice of appeal.
As the applicants have failed to satisfy us that the proceedings in the superior court were of a civil nature, we have no hesitation in holding that this application is misconceived and we order that it be dismissed with costs.
Dated and delivered at Nairobi this 20th day of February, 2004.
R.S.C. OMOLO
…………………
JUDGE OF APPEAL
P.K. TUNOI
………………….
JUDGE OF APPEAL
E.O. O’KUBASU
…………………..
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR