[2000] KECA 181 (KLR)
The court held that the notice of appeal was invalid because it was filed on behalf of the plaintiff, whereas the appellant was Thabiti Insurance Brokers Limited, not the plaintiff. As a notice of appeal is a primary document, it cannot be amended to cure such a fundamental defect. The application to strike out the...
Source-derived case information.
- Citation
- [2000] KECA 181 (KLR)
- Parties
- Applicant: Joseph Ogero Obonyo; Respondent: Thabiti Insurance Brokers Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 215 of 2000
- Procedural Posture
- Miscellaneous Application / Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of appeal struck out. Order of stay vacated. Costs to applicant.
- Judges
- JE Gicheru, D Ole Keiwua
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ogero Obonyo
Applicant
Thabiti Insurance Brokers Limited
Respondent
Procedural Posture
Miscellaneous Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal filed on 22nd October, 1999 is valid.
- 2 Whether the notice of appeal can be amended as a primary document.
Ratio Decidendi
The court held that the notice of appeal was invalid because it was filed on behalf of the plaintiff, whereas the appellant was Thabiti Insurance Brokers Limited, not the plaintiff. As a notice of appeal is a primary document, it cannot be amended to cure such a fundamental defect. The application to strike out the notice of appeal therefore succeeded, and the notice was struck out. The order of stay previously granted was also vacated as a consequence of the striking out of the notice of appeal.
Court Disposition
Application allowed. Notice of appeal struck out. Order of stay vacated. Costs to applicant.
Orders
- The notice of appeal filed on 22nd October, 1999 is struck out.
- The order of stay granted on 12th May, 2000 is vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU
CIVIL MISCELLANEOUS APPLICATION NO. 215 OF 2000
JOSEPH OGERO OBONYO ..................................... APPLICANT
AND
THABITI INSURANCE BROKERS LIMITED ............. RESPONDENT
RULING OF THE COURT
This is an application to strike out the notice of appeal filed on 22nd October, 1999 on the ground that the same is invalid. It purports to have been given on behalf of the plaintiff. It has not so intended because the plaintiff is Mr. Obonyo whilst the appellant is not the plaintiff but Thabiti Insurance Brokers Limited. Mr. Ocharo made a gallant attempt to save the day but in our judgment noting that he has said that persuades us that notice is good or that the notice can be amended as it is plainly a primary document. It follows that the application succeeds and the notice of appeal is struck out. Consequently, the order of stay granted on 12th May, 2000 is also hereby vacated.
The applicant shall have the costs of the application dated 8th June, 2000.
Dated and delivered at Kisumu this 24th day of November, 2000.
J. E. GICHERU
.....................
JUDGE OF APPEAL
A. A. LAKHA
.....................
JUDGE OF APPEAL
M. KEIWUA
.....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR