[2006] KECA 284 (KLR)
The Court found that the order in the record of appeal was, on its face, certified and there was no allegation or evidence that the appeal had been withdrawn and refiled with a certified copy of the order. Therefore, the application to strike out the appeal was without basis and was dismissed. The Court exercised...
Source-derived case information.
- Citation
- [2006] KECA 284 (KLR)
- Parties
- Applicant: Jubilee Insurance Company Ltd; Respondent: Benson Mariachana
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 32 of 2005
- Procedural Posture
- Civil Application / Application to Strike Out Appeal
- Outcome
- application dismissed
- Legal Topics
- Striking Out Appeal, Certification of Orders, Appeal Procedure
- 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
Jubilee Insurance Company Ltd
Applicant
Benson Mariachana
Respondent
Procedural Posture
Civil Application / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for lack of a properly certified order in the record of appeal.
Ratio Decidendi
The Court found that the order in the record of appeal was, on its face, certified and there was no allegation or evidence that the appeal had been withdrawn and refiled with a certified copy of the order. Therefore, the application to strike out the appeal was without basis and was dismissed. The Court exercised its discretion not to award costs for the dismissed motion.
Court Disposition
application dismissed
Orders
- The motion dated 17th January, 2005 to strike out the appeal is dismissed.
- No order as to costs of the dismissed motion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL APPLICATION 32 OF 2005
JUBILEE INSURANCE COMPANY LTD……………….…………..APPLICANT
AND
BENSON MARIACHANA……………………………………………RESPONDENT
(Application to strike out a Court of Appeal case No. 1 of 2005 from a ruling of the High Court of Kenya at Kisumu (Tanui, J) dated 16th November, 2004
in
H.C.C.C. NO. 38 OF 2003)
****************
RULING OF THE COURT
With respect to Miss Pandit Nishit, learned counsel for the applicant, there is no reason for striking out the appeal before us. The order in the record of appeal is, on the face of it certified and there is no allegation that after the appeal was lodged it was withdrawn and refiled with a certified copy of the order. We think the application to strike out the appeal is baseless and we dismiss the motion dated 17th January, 2005. We make no order as to the costs of the dismissed motion.
DATED and DELIVERED at KISUMU this 29th day of March, 2006.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P.K. TUNOI
…………………………
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR