[2000] KECA 233 (KLR)
The court found that the respondent, having filed a notice of appeal, failed to take any further steps to prosecute the intended appeal, including not filing the record of appeal within the 60-day period and not applying for copies of proceedings or judgment. This inaction demonstrated a lack of intention to pursue...
Source-derived case information.
- Citation
- [2000] KECA 233 (KLR)
- Parties
- Applicant: Julius Omedo; Respondent: William Magwar
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 43 of 2000
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Omedo
Applicant
William Magwar
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for failure to file the record of appeal within the prescribed time.
- 2 Whether the respondent took any steps to pursue the intended appeal.
Ratio Decidendi
The court found that the respondent, having filed a notice of appeal, failed to take any further steps to prosecute the intended appeal, including not filing the record of appeal within the 60-day period and not applying for copies of proceedings or judgment. This inaction demonstrated a lack of intention to pursue the appeal, and the court determined that it would be improper to allow the notice of appeal to remain on the record. Accordingly, the application to strike out the notice of appeal was allowed with costs to the applicant.
Court Disposition
application allowed
Orders
- The Notice of Appeal dated and filed in H.C.C.C. No.124 of 1991 is struck out with costs.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU (CORAM: (OMOLO, BOSIRE & O'KUBASU JJ.A) CIVIL APPLICATION NO. NAI.43 OF 2000(KSM 29/99) BETWEENJULIUS OMEDO ..................................................APPLICANT AND WILLIAM MAGWAR .........................................RESPONDENT(An application to strike out Notice of Appeal in an intended appeal from the judgment of the High Court of Kenya at Kakamega (Justice Tanui) dated 30th November 1998in H.C.C.C. No.124 of 1991 **************** RULING OF THE COURT
The respondent was the unsuccessful party in High Court Case No.124 of 1991. The judgment of the court was delivered on 30th November, 1998, and the respondent promptly filed a notice of appeal on 8th December, 1998, declaring his intention of appealing against that decision. He had 60 days thereafter to file a record of appeal, which he has so far not done. He has also not applied for copies of proceedings and the judgment against which an appeal is intended. Clearly this is a proper case in which this court should not let a Notice of Appeal remain in the Superior Court record as the respondent does snot seem to be in any hurry to do anything towards pursuing his intended appeal. We allow the application dated 23rd July 1999, and order that the Notice of Appeal dated and filed in the above suit be struck out with costs.
Dated and delivered this 24th day of March, 2000. R.S.C. OMOLO .............. JUDGE OF APPEAL
S.E.O. BOSIRE ................ JUDGE OF APPEAL
E.O. O'KUBASU ................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR