[1997] KECA 170 (KLR)
The Court found that although there was a delay in the preparation of the record of appeal, the respondent had actively pursued the matter and the delay was due to circumstances beyond its control, specifically the superior court's delay in preparing the record. As such, the respondent could not be faulted for the...
Source-derived case information.
- Citation
- [1997] KECA 170 (KLR)
- Parties
- Applicant: Isaac Ndiso Malinda; Applicant: Catherine N. Mutisya; Applicant: David Mutua Wambua; Respondent: Kenya Commercial Bank Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 361 of 1996
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs to abide the appeal
- Judges
- AM Akiwumi
- Legal Topics
- Striking Out Notice of Appeal, Delay in Preparing Record, Appeal Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ndiso Malinda
Applicant
Catherine N. Mutisya
Applicant
David Mutua Wambua
Applicant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal and draft memorandum of appeal should be struck out for failure to take essential procedural steps.
- 2 Whether the delay in preparing the record of appeal is attributable to the respondent.
Ratio Decidendi
The Court found that although there was a delay in the preparation of the record of appeal, the respondent had actively pursued the matter and the delay was due to circumstances beyond its control, specifically the superior court's delay in preparing the record. As such, the respondent could not be faulted for the delay, and the application to strike out the notice of appeal and draft memorandum of appeal lacked merit. The application was therefore dismissed with costs to abide the outcome of the appeal, which the Court expected would be filed promptly once the record became available.
Court Disposition
application dismissed with costs to abide the appeal
Orders
- The application to strike out the notice of appeal and draft memorandum of appeal is dismissed.
- Costs to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, TUNOI & LAKHA, JJ.A.) CIVIL APPLICATION NO. NAI 361 OF 1996
BETWEEN
ISAAC NDISO MALINDA CATHERINE N. MUTISYA DAVID MUTUA WAMBUA ............................. APPLICANTS AND KENYA COMMERCIAL BANK LTD ....................... RESPONDENT
(Application for striking out Notice of Appeal from an Appeal in the Ruling and Order of the High Court of Kenya at Nairobi (Justice Bosire) dated 25th November, 1993 in H.C.C.C. NO. 4599 OF 1993) ************
RULING OF THE COURT
The present application is to strike out the notice of appeal and draft memorandum of appeal filed by the Respondent in the ground that no essential step required to be taken under our Rules has been done by the Respondent. But the Replying Affidavit filed by the Respondent shows that the matter of obtaining the record of appeal from the superior court has been pursued with some vigour and that the delay in the preparation of the record of appeal by the superior court, can not be put at the foot of the Respondent. It is true there has been some delay in this respect but this is a matter which in the peculiar circumstances of this application, is beyond the control of the Respondent. The order that therefore commands itself to us is that the application lacks merit and should be dismissed with costs to abide the appeal which we expect will be filed with alacrity as soon as the record of appeal becomes available. It is so ordered.
Dated and delivered at Nairobi this 20th day of January, 1997.
A. M. AKIWUMI
.................
JUDGE OF APPEAL
P. K. TUNOI
.................
JUDGE OF APPEAL
A. A. LAKHA
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.