[2017] KESC 24 (KLR)
The Supreme Court found that the respondents failed to provide sufficient grounds for their failure to file the petition of appeal within the prescribed time. The Court held that the unavailability of certified copies of proceedings and judgment was not a valid excuse, as the Supreme Court Rules allow for omission...
Source-derived case information.
- Citation
- [2017] KESC 24 (KLR)
- Parties
- Applicant: Enock Irungu; Respondent: Benson Irungu Mbaria; Respondent: Muchangi Nduati Ngingo
- Court
- Supreme Court
- Court Station
- Supreme Court of Kenya
- Jurisdiction
- Kenya
- Case Number
- Civil Application 8 of 2015
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs to the applicant
- Judges
- JB Ojwang, NS Ndungu
- Legal Topics
- Striking Out Notice of Appeal, Supreme Court Rules, Extension of Time, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enock Irungu
Applicant
Benson Irungu Mbaria
Respondent
Muchangi Nduati Ngingo
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for failure to file the petition of appeal within the prescribed time.
- 2 Whether the respondents provided sufficient grounds for delay in filing the appeal.
Ratio Decidendi
The Supreme Court found that the respondents failed to provide sufficient grounds for their failure to file the petition of appeal within the prescribed time. The Court held that the unavailability of certified copies of proceedings and judgment was not a valid excuse, as the Supreme Court Rules allow for omission of such documents upon application and for subsequent filing of additional documents. The respondents did not utilize these procedural avenues and did not file the appeal within the required period. Consequently, the Court allowed the application to strike out the notice of appeal, with costs to the applicant.
Court Disposition
application allowed; notice of appeal struck out with costs to the applicant
Orders
- The application to strike out the notice of appeal is allowed.
- The notice of appeal is struck out.
Full Case Text
Judgment text and source record
24 paragraphs
Irungu v Mbaria & another (Civil Application 8 of 2015) [2017] KESC 24 (KLR) (23 March 2017) (Ruling)
Enock Irungu v Benson Irungu Mbaria & another [2017] eKLR
Neutral citation: [2017] KESC 24 (KLR)
Republic of Kenya
In the Supreme Court of Kenya
Civil Application 8 of 2015
JB Ojwang & NS Ndungu, SCJJ
March 23, 2017
Between
Enock Irungu
Applicant
and
Benson Irungu Mbaria
1st Respondent
Muchangi Nduati Ngingo
2nd Respondent
(An application to strike out the notice of appeal in the intended appeal against the Judgement of the Court of Appeal delivered on 25th March 2015, under Rules 37 of the Supreme Court Rules, 2012))
Ruling
1. Upon perusing the application dated 25th June 2015 and filed on the same day for the striking out of the notice of appeal filed in the Supreme Court on 31st March, 2015; and
2. Upon reading the affidavit of Livingstone Maina Ombete sworn on the 25th day of March 2017; and
3. Upon considering the written submissions on record for the applicant and the respondent, in which the applicant contends that the respondents filed their notice of appeal on March 31, 2015 but since then they have not filed their petition of appeal, and the 30-day-period prescribed by the Supreme Court Rules has expired. The respondents contend that they were unable to obtain the complete certified copies of the proceedings and Judgement of the Court of Appeal within the prescribed time. They aver that they had lodged an application in the Court of Appeal seeking leave to appeal to this Court, and for leave to appeal out of time, which application is still pending before the Court of Appeal.
4. Having considered the application, we make the following Orders under section 23(2) of the Supreme Court Act, 2011 and rules 31 & 37 of the Supreme Court Rules, 2012:ORDERS REASONS
We allow the application with costs to the applicant The respondents have failed to provide sufficient grounds for their failure to file their appeal within the prescribed time, and up to date no appeal has been filed. The lack of complete certified copies of proceedings is not a sufficient reason, in view of Rule 33(5) which provides that the Supreme Court may allow a party to omit a document from the record of appeal, upon application, and in view of Rule 33(6), which states that a party may file additional documents within 15 days of filing without the leave of Court.
DATED and DELIVERED at NAIROBI this 23rd day of March, 2017. ****……………………………. ..............……………………..…..…****J. B. OJWANG S. N. NDUNGUJUSTICE OF THE SUPREME JUSTICE OF THE SUPREMECOURT COURTI certify that this is atrue copy of the originalREGISTRARSUPREME COURT OF KENYA.