[1996] KECA 76 (KLR)
The Court found that the appeal was filed eleven days after the expiry of the period allowed for filing, and no leave had been sought or obtained to file the appeal out of time. As a result, the appeal was incompetent. The Court therefore allowed the application to strike out the appeal and awarded costs to the...
Source-derived case information.
- Citation
- [1996] KECA 76 (KLR)
- Parties
- Appellant: Joseph Gichuki; Respondent: Grace Mwihaki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 139 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- RO Kwach, AM Akiwumi, AB Shah
- Legal Topics
- Extension of Time, Appeal Out of Time, Striking Out Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gichuki
Appellant
Grace Mwihaki
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
Legal Issues
- 1 Whether the appeal was filed within the time allowed by the court.
- 2 Whether leave was obtained to file the appeal out of time.
- 3 Whether the appeal is competent in the absence of leave for late filing.
Ratio Decidendi
The Court found that the appeal was filed eleven days after the expiry of the period allowed for filing, and no leave had been sought or obtained to file the appeal out of time. As a result, the appeal was incompetent. The Court therefore allowed the application to strike out the appeal and awarded costs to the respondent.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out with costs to the respondent (applicant).
- The respondent shall also have costs of the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPEAL NO. 139 OF 1995
JOSEPH GICHUKI....................................................APPELLANT
AND
GRACE MWIHAKI..................................................RESPONDENT
(Being an appeal against the judgment of the High Court of Kenya at Nairobi (Hon. Mr. Justice G.P. Mbito) dated 19th May, 1993
in
H.C.C.C. NO. 5805 OF 1990
*************************
RULING OF THE COURT
On 30th day of June, 1995 a learned single judge of this court granted extension of rime to the respondent to file an appeal against the judgment and decree of the superior court (Mbito J.) This appeal therefore should have been filed by 30th July, 1996. This appeal was filed on 10th August, 1996 without any leave having been obtained to file this appeal some eleven days out of time. This appeal is therefore incompetent. The application therefore succeeds and this appeal itself is struck out with costs to the applicant (respondent to the appeal) who will also have costs of the appeal.
Dated and delivered at Nairobi this 30th day of September, 1996.
R.O. KWACH
...................................
JUDGE OF APPEAL
A.M. AKIWUMI
..................................
JUDGE OF APPEAL
A.B. SHAH
.............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR