[2013] KECA 512 (KLR)
The Court found that the respondents were duly notified that the proceedings and judgment were ready for collection on 14th September, 2012, and were required under Rule 82(1) of the Court of Appeal Rules to file the record of appeal within 60 days. The respondents failed to file the record of appeal within the...
Source-derived case information.
- Citation
- [2013] KECA 512 (KLR)
- Parties
- Applicant: Julius Kiruma Kariuki; Respondent: Nahashon Mwangi Mbogo; Respondent: Peter Githinji; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 321 of 2012
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of Appeal struck out. Costs awarded to the applicant.
- Legal Topics
- Appeals Process, Striking Out Notice, Court of Appeal Rules, Record of Appeal Filing, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kiruma Kariuki
Applicant
Nahashon Mwangi Mbogo
Respondent
Peter Githinji
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondents failed to take essential steps to file the record of appeal within the prescribed time under Rule 82(1) of the Court of Appeal Rules.
- 2 Whether the Notice of Appeal should be struck out for failure to comply with procedural requirements.
Ratio Decidendi
The Court found that the respondents were duly notified that the proceedings and judgment were ready for collection on 14th September, 2012, and were required under Rule 82(1) of the Court of Appeal Rules to file the record of appeal within 60 days. The respondents failed to file the record of appeal within the prescribed period and did not provide any explanation for their failure to comply with the procedural requirements. The matters stated in the supporting affidavit were uncontroverted, and the respondents did not attend court or file any response. Consequently, the Court allowed the application and struck out the Notice of Appeal pursuant to Rule 84 of the Court of Appeal Rules,...
Court Disposition
Application allowed. Notice of Appeal struck out. Costs awarded to the applicant.
Orders
- The Notice of Appeal filed on 22nd June, 2009 is struck out pursuant to Rule 84 of the Court of Appeal Rules.
- The applicant shall have the costs of the application.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: VISRAM, KOOME & ODEK, JJ.A.)
CIVIL APPLICATION NO. NAI. 321 OF 2012(NYR. 24/2012)
JULIUS KIRUMA KARIUKI....................................................................APPLICANT
VERSUS
NAHASHON MWANGI MBOGO................................................1ST RESPONDENT
PETER GITHINJI.........................................................................2ND RESPONDENT
THE ATTORNEY GENERAL.........................................................3RD RESPONDENT
(Application to strike out a Notice of Appeal from the Judgment of the High Court of Kenya at Nyeri (Makhandia, J.)
dated 18th June, 2009
in
H.C.C.C. No. 64 of 2003)
********************
RULING OF THE COURT
On 18th day of June, 2009, Makhandia, J. (as he then was), delivered a Judgment in favour of the applicant in HCCC No 64 of 2003. Being dissatisfied by the said Judgment, the 2nd and 3rd respondents filed a Notice of Appeal on 22nd day of June, 2009. The Notice of Appeal was served upon the applicant and he accordingly moved to file a notice of address of service. Thereafter, the firm of Muchoki Kangata & Company Advocates filed a notice of change of Advocates on 16th July, 2010 and filed an application seeking for orders of stay of execution which were granted on 24th September, 2010. The respondents' advocates were notified vide a letter dated 14th September, 2012 written by the Deputy Registrar of the High Court, that the Proceedings and Judgment in respect of High Court Civil Case Number 64 of 2003, were ready for collection upon payment of the sum of Ksh. 1,160/=. Under the provisions of Rules, 82 of the Court of Appeal, the respondents were supposed to lodge the record of appeal within 60 days which lapsed.
By a Notice of Motion dated 6th December, 2012, the applicant sought for orders that the Notice of Appeal filed on 22nd June, 2009 be struck out for reasons that the respondent failed to take essential steps to file an appeal given that the record of proceedings was made available for collection from 14th September, 2012. This application is supported by the affidavit of Albert Simiyu Kuloba, sworn on 6th December, 2012.
The respondents did not attend Court although they were duly served with the application and the hearing notice. They also did not file any response thereto.
We have considered the submissions by counsel as well as the matters stated in the supporting affidavit. These matters are not controverted, the respondents were served with the application, notified of the hearing date, and also served with a letter advising them that the proceedings were ready for collection. Under Rules 82(1) of this Court's Rules, the appeal ought to have been filed 60 days from the 14th day of September, 2012.
The respondents have not filed any record of appeal and there being no explanation, for failure to take essential steps to file the record of appeal we allow the application and hereby strike out the Notice of Appeal pursuant to the provisions of Rule 84 of this Court Rule's. The applicant shall have the cost of the application.
Dated and Delivered at Nyeri this 20th day of June, 2013
ALNASHIR VISRAM
…...............................................
JUDGE OF APPEAL
M. K. KOOME
….................................................
JUDGE OF APPEAL
J. OTIENO – ODEK
…...............................................
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR