[2003] KECA 112 (KLR)
The court found that the notice of appeal was served on the applicant outside the mandatory 7-day period stipulated by rule 76(1) of the Court of Appeal Rules. This failure to comply with a fundamental procedural requirement constituted a failure to take an essential step in the appeal process. Under rule 80 of the...
Source-derived case information.
- Citation
- [2003] KECA 112 (KLR)
- Parties
- Applicant: Kasyi Survitex Limited; Respondent: Kitale Municipal Council; Respondent: Sapamo Consultants
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 197 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out with costs to the applicant.
- Legal Topics
- Notice of Appeal, Service of Process, Court of Appeal Rules, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasyi Survitex Limited
Applicant
Kitale Municipal Council
Respondent
Sapamo Consultants
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was served within the prescribed period under rule 76(1) of the Court of Appeal Rules.
- 2 Whether failure to serve the notice of appeal within time is a ground for striking out the notice under rule 80 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the notice of appeal was served on the applicant outside the mandatory 7-day period stipulated by rule 76(1) of the Court of Appeal Rules. This failure to comply with a fundamental procedural requirement constituted a failure to take an essential step in the appeal process. Under rule 80 of the Court of Appeal Rules, such a failure is a valid ground for striking out the notice of appeal. The court therefore struck out the notice of appeal with costs to the applicant.
Court Disposition
Notice of appeal struck out with costs to the applicant.
Orders
- The notice of appeal is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
civil misc appl 197 of 02
KASYI SURVITEX LIMITED ........................................... APPLICANT
AND
KITALE MUNICIPAL COUNCIL
SAPAMO CONSULTANTS ............................... RESPONDENTS
(Being an application to strike out the notice of appeal in an intended appeal from a judgment of the High Court of Kenya at Mombasa (Comm Khaminwa) dated 10th May, 2002
in
H.C.C.C. NO. 384 OF 1993)
RULING OF THE COURT
The Notice of Appeal sought to be struck out was served on the applicant on 12-6-02 clearly outside the prescribed period of 7 days under rule 76 (1) of the Court of Appeal Rules the same having been lodged in the superior court on 24th May, 2002. An essential step in the proceedings was therefore not taken under the provisions of rule 80 of the Rules of this Court . In the result the said Notice of Appeal is struck out with costs to the applicant.
Made at Mombasa this 23rd day of January, 2003.
J. E. GICHERU
---------------
JUDGE OF APPEAL
P. K. TUNOI
---------------
JUDGE OF APPEAL
A. A. LAKHA
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR