[2019] KECA 738 (KLR)
The Court found that the record of appeal was filed 14 months late without leave of the Court, in contravention of the mandatory timelines set out in the Court of Appeal Rules. The applicant had complied with the procedural requirements for bringing the application to strike out. As a result, the Court determined...
Source-derived case information.
- Citation
- [2019] KECA 738 (KLR)
- Parties
- Appellant: Joshua Kipkorir (Suing on behalf of the Estate of Kipsaina Arap Mursoi, Deceased); Respondent: Ezekiel Kiplel & 7 Others; Respondent: Isaac Julius Sang
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 118 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out for being filed out of time without leave.
- Judges
- GK Oenga, JO Odek
- Legal Topics
- Appeal Timelines, Striking Out Appeal, Court of Appeal Rules, Leave of Court, Record of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Kipkorir (Suing on behalf of the Estate of Kipsaina Arap Mursoi, Deceased)
Appellant
Ezekiel Kiplel & 7 Others
Respondent
Isaac Julius Sang
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the record of appeal should be struck out for non-compliance with procedural rules.
Ratio Decidendi
The Court found that the record of appeal was filed 14 months late without leave of the Court, in contravention of the mandatory timelines set out in the Court of Appeal Rules. The applicant had complied with the procedural requirements for bringing the application to strike out. As a result, the Court determined that the appeal was incompetent and ordered that it be struck out, with costs awarded to the 4th and 1st respondents.
Court Disposition
Appeal struck out for being filed out of time without leave.
Orders
- Civil Appeal No. 118 of 2018 is struck off the record.
- The Notice of Motion dated 25th January, 2019 is allowed.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: A. MAKHANDIA, P. KIGE, & OTIENO ODEK, JJ.A)
CIVIL APPEAL NO. 118 OF 2018
BETWEEN
JOSHUA KIPKORIR Suing on
behalf of the Estate of KIPSAINA
ARAP MURSOI (DECEASED)................................................APPELLANT
AND
EZEKIEL KIPLEL & 7 OTHERS......................................RESPONDENTS
(An Appeal from the Judgment of the High Court of Kenya at Eldoret,
(G. K. Kimondo, J) dated 27th April, 2017
in
ELDORET HCC NO. 201 OF 1997)
********************
RULING
Before us is a Notice of Motion dated 25th January, 2019 seeking to strike out the Record of appeal in Civil Appeal No. 11 of 2018.
The application is supported by the affidavit of Isaac Julius Sang the 4th respondent herein.
The ground in support is that the appeal was filed on 12th September, 2018 out of time. The impugned Judgment was delivered on 27th April, 2017 and the appeal ought to have been filed on a 9th July, 2017. It was submitted the appeal was filed one year and two months out of time.
We have considered the grounds in support of the application to strike out the Record of Appeal. The 1st respondent supports the application to strike out.
The respondent to the application opposes the application to strike out on points of law. No replying affidavit has been filed in opposition to the application.
We are satisfied the Record of Appeal was filed 14 months late without leave of this Court. We are further satisfied the Applicant complied with Rule 84 of the Rules of this Court.
Accordingly, we hereby order Civil Appeal No. 118 of 2018 be and is hereby struck off the Record. The Notice of Motion dated 25th January, 2019 be and is hereby allowed with costs to the 4th respondent and the 1st respondent. It is so ordered.
Dated at Eldoret this 9th day of May, 2019.
A. MAKHIANDIA
....................................
JUDGE OF APPEAL
P. KIAGE
...................................
JUDGE OF APPEAL
OTIENO ODEK
.....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR