[1997] KECA 368 (KLR)
The Court found that the respondent had failed to comply with the order of a single judge granting an extension of time to file the record of appeal within 30 days. The respondent admitted to this noncompliance and had not lodged the record of appeal as required. The Court held that such noncompliance with its order...
Source-derived case information.
- Citation
- [1997] KECA 368 (KLR)
- Parties
- Applicant: Ishmael Mungai; Respondent: Mungai Muna
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 288 of 1996
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application granted; notice of appeal struck out; no order as to costs
- Judges
- JE Gicheru, RO Kwach
- Legal Topics
- Extension of Time, Notice of Appeal, Noncompliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ishmael Mungai
Applicant
Mungai Muna
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondent's failure to lodge the record of appeal within the extended time warrants striking out the notice of appeal.
- 2 Whether noncompliance with a court order for extension of time justifies the grant of the application to strike out.
Ratio Decidendi
The Court found that the respondent had failed to comply with the order of a single judge granting an extension of time to file the record of appeal within 30 days. The respondent admitted to this noncompliance and had not lodged the record of appeal as required. The Court held that such noncompliance with its order was sufficient ground to grant the application to strike out the notice of appeal. Accordingly, the respondent's Notice of Appeal dated 9th June, 1989 was struck out. The Court exercised its discretion not to award costs for the application.
Court Disposition
application granted; notice of appeal struck out; no order as to costs
Orders
- The respondent's Notice of Appeal dated 9th June, 1989 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, Kwach JJ.A. & Bosire, Ag. J.A.)
CIVIL APPLICATION NO. NAI. 288 OF 1996
BETWEEN
ISHMAEL MUNGAI............................................APPLICANT
AND
MUNGAI MUNA..............................................RESPONDENT
(Application to strike out Notice of Appeal out of time in an intended appeal
from a judgment of the High Court of Kenya at Nairobi (Akiwumi, J.)
dated 5/6/1991
in
H.C.C.C. NO. 2270 OF 1981) **********************
RULING
On 18th October, 1993 a single judge of this Court granted the respondent extension of time to lodge the record of appeal within 30 days of that date. To this day no record of appeal has been lodged and the respondent admits this fact. On account of this lapse the applicant has sought to have the respondent's Notice of Appeal struck out. In view of the noncompliance with the order of the single judge of this Court as is referred to above the applicant's application is irresistible. In the result, the same is granted so that the respondent's Notice of Appeal dated 9th June, 1989 is struck out but we will make no order as to the costs occasioned by this application.
Dated and delivered at Nairobi this 19th day of September, 1997.
J.E. GICHERU
.............................
JUDGE OF APPEAL
R.O. KWACH
............................
JUDGE OF APPEAL
S.E.O. BOSIRE
...........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR