[2018] KECA 494 (KLR)
The Court found that the appellant, having been duly served with a notice to show cause and failing to appear or provide any justification, was in breach of the procedural requirements under Rule 83 of the Court of Appeal Rules. The absence of the appellant and lack of response justified the striking out of the...
Source-derived case information.
- Citation
- [2018] KECA 494 (KLR)
- Parties
- Appellant: Independent Electoral & Boundaries Commission; Appellant: The Returning Officer, Ugenya Constituency, Isaiah Nabwayo; Respondent: David Ouma Ochieng; Respondent: Christopher Odhiambo Karani
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Petition Appeal19 of 2018
- Procedural Posture
- Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
- Outcome
- Notice of appeal struck out; costs awarded to the 2nd respondent.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Court of Appeal Rules, Striking Out Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Independent Electoral & Boundaries Commission
Appellant
The Returning Officer, Ugenya Constituency, Isaiah Nabwayo
Appellant
David Ouma Ochieng
Respondent
Christopher Odhiambo Karani
Respondent
Procedural Posture
Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for non-compliance with the Court of Appeal Rules.
Ratio Decidendi
The Court found that the appellant, having been duly served with a notice to show cause and failing to appear or provide any justification, was in breach of the procedural requirements under Rule 83 of the Court of Appeal Rules. The absence of the appellant and lack of response justified the striking out of the notice of appeal. The Court exercised its discretion to strike out the notice and awarded costs to the 2nd respondent, who was present and represented in court.
Court Disposition
Notice of appeal struck out; costs awarded to the 2nd respondent.
Orders
- The notice of appeal is struck out under Rule 83 of the Court of Appeal Rules.
- Costs awarded to the 2nd respondent.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E . M. GITHINJI, HANNAH
OKWENGU &J. MOHAMMED, JJ.A.)
ELECTION PETITION CIVIL APPEAL NO. 19 OF 2018
BETWEEN
INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION FIRST........................................................APPELLANT
THE RETURNING OFFICER, UGENYA CONSTITUENCY,
ISAIAH NABWAYO............................................SECOND APPELLANT
AND
DAVID OUMA OCHIENG...................................FIRST RESPONDENT
CHRISTOPHER ODHIAMBO KARANI......SECOND RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Siaya,(Cherere, J.)
dated 1st March, 2018in High Court Election Petition No. 1 Of 2017)
*******************************
ORDER OF THE COURT
A notice to show cause having been issued for the appellant to show cause why the notice of appeal should not be struck out and the appellant having been served and being absent, we struck out the notice of appeal under Rule 83 of the Court of Appeal Rules and award the costs to the 2nd respondent who is represented in Court today.
DATED at Kisumu this 19th June, 2018.
E. M. GITHINJI
...................................
JUDGE OF APPEAL
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
J. MOHAMMED
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.