[2018] KECA 482 (KLR)
The court found that the appellant failed to attend court to show cause why the Notice of Appeal should not be struck out and had not filed an appeal within the 30 days required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Petition Rules, 2017. Furthermore, the Notice of...
Source-derived case information.
- Citation
- [2018] KECA 482 (KLR)
- Parties
- Appellant: Joseph Amisi Omukanda; Respondent: Independent Electoral and Boundaries Commission (I.E.B.C.); Respondent: Returning Officer, Navakholo Constituency; Respondent: Emmanuel Wangwe
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 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 with costs to the respondents.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Filing Timelines, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Amisi Omukanda
Appellant
Independent Electoral and Boundaries Commission (I.E.B.C.)
Respondent
Returning Officer, Navakholo Constituency
Respondent
Emmanuel Wangwe
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 filed by the appellant should be struck out for being filed out of time.
- 2 Whether the appellant complied with the statutory timelines for filing an appeal under the Elections Act and Court of Appeal Rules.
Ratio Decidendi
The court found that the appellant failed to attend court to show cause why the Notice of Appeal should not be struck out and had not filed an appeal within the 30 days required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Petition Rules, 2017. Furthermore, the Notice of Appeal was filed out of time. Consequently, the court exercised its power under Rule 84 of the Court of Appeal Rules, as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017, to strike out the Notice of Appeal with costs to the respondents.
Court Disposition
Notice of Appeal struck out with costs to the respondents.
Orders
- The Notice of Appeal filed on 15th March, 2018 is struck out under Rule 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E.M.GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CIVIL APPEAL ELECTION PETITION NO. 25 OF 2018
BETWEEN
JOSEPH AMISI OMUKANDA....................................................APPELLANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION (I.E.B.C.)......................1ST RESPONDENT
RETURNING OFFICER,
NAVAKHOLO CONSTITUENCY..................................2ND RESPONDENT
EMMANUEL WANGWE................................................3RD RESPONDENT
(Being Notice to show cause why the Notice of Appeal should not be struck out under Section 85 A (1) (a) of the Election Act and Rule 83 of the Court of Appeal Rules
in
ELECTION PETITION CIVIL APPEAL NO. 25 OF 2018)
*******************************************
ORDER
ORDER OF THE COURT
Since the intended appellant’s counsel M/S Oduk has not attended Court to show cause why the Notice of Appeal filed on 15th March, 2018 should not be struck out and since the intended appellant has not filed an appeal within the 30 days stipulated by section 85 A (1) (a) of the Elections Act as read with Rule 8(5) of the Court of Appeal Election Petition Rules, 2017 and further as the Notice of Appeal was filed out of time, the Notice of Appeal is struck out under Rule 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017 with costs to the respondents.
Made at Kisumu this 21st day of 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