[1999] KECA 121 (KLR)
The Court found that the respondent had fully complied with the rules relating to the filing of an appeal. The delay in lodging the appeal was due to the superior court's delay in supplying the necessary documents, as evidenced by the certificate of delay. The respondent was not guilty of laches and had acted...
Source-derived case information.
- Citation
- [1999] KECA 121 (KLR)
- Parties
- Applicant: Joel Muthui Kyambu; Respondent: United Finance Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 260 of 1999
- Procedural Posture
- Civil Application / Application for Striking Out Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Appeal Timelines, Striking Out Notice, Certificate of Delay, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Muthui Kyambu
Applicant
United Finance Limited
Respondent
Procedural Posture
Civil Application / Application for Striking Out Notice of Appeal
Legal Issues
- 1 Whether the respondent failed to file the appeal within the time prescribed by the Court of Appeal Rules.
- 2 Whether the notice of appeal should be struck out for non-compliance with procedural timelines.
- 3 Whether the stay orders granted by the High Court should be set aside.
Ratio Decidendi
The Court found that the respondent had fully complied with the rules relating to the filing of an appeal. The delay in lodging the appeal was due to the superior court's delay in supplying the necessary documents, as evidenced by the certificate of delay. The respondent was not guilty of laches and had acted diligently throughout the process. Consequently, the application to strike out the notice of appeal was dismissed, and the stay orders were not set aside. The Court, however, acknowledged the applicant's prolonged pursuit of justice and directed that the appeal be heard on a priority basis.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the notice of appeal is dismissed with costs to the respondent.
- The appeal C.A. 252 of 1999 shall be heard on a priority basis.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, KWACH & TUNOI, JJ.A.) CIVIL APPLICATION NO. NAI. 260 OF 1999 BETWEEN
JOEL MUTHUI KYAMBU ................................. APPLICANT AND UNITED FINANCE LIMITED ............................ RESPONDENT
(Application for striking out of the Notice of Appeal in an intended appeal from a judgment of the High Court of Kenya at Nairobi (Pall, J.) dated 8th September, 1991 in H.C.C.C. NO. 3782 OF 1991) ********************* RULING OF THE COURT
By this application brought under rule 80 of the Rules of this Court, the applicant who is acting in person urges that the Notice of Appeal lodged in this court on 9th October, 1998, be struck out on the ground that the respondent has not filed the appeal within the time prescribed by the Rules. Also, the applicant prays that the orders for stay pending appeal granted by the superior court on 20th November, 1998 be set aside.
Mr. Gaturu, counsel for the respondent, has by a comprehensive replying affidavit, shown detailed steps he has undertaken so far which have culminated in his lodging the appeal which has been registered as C.A. No. 252 of 1999. We are satisfied that the respondent has fully complied with the rules relating to filing an appeal. It is manifestly clear that the superior court delayed in supplying the necessary papers for the lodging of the appeal. The Certificate of delay dated 11th November, 1999, fully explains the position. We are satisfied that the respondent has not been guilty of laches and has all the way acted diligently in seeing that the appeal was lodged within the parameters of the rules. This application fails and is accordingly dismissed with costs. However, we are not without sympathy for the applicant whose attempts to seek justice dates back to 1991. We shall order that the appeal C.A. 252 of 1999 be heard on a priority basis.
Delivered at Nairobi this 7th day of December, 1999.
J. E. GICHERU ............... JUDGE OF APPEAL
R. O. KWACH ............... JUDGE OF APPEAL
P. K. TUNOI ............... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR