[1996] KECA 183 (KLR)
The Court found that the application was unsupported by affidavit evidence demonstrating that the respondent had failed to take any essential procedural step in the appeal. The Court held that if the applicant was dissatisfied with previous orders or rulings of the superior court, the proper course was to appeal...
Source-derived case information.
- Citation
- [1996] KECA 183 (KLR)
- Parties
- Appellant: Kenya Commercial Bank Ltd; Respondent: Fisco (Kenya) Limited; Respondent: Paul Okelo Abaja
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 109 of 1995
- Procedural Posture
- Civil Appeal / Application for Striking Out Appeal and Related Orders
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out Appeal, Stay of Proceedings, Receiver Management, Proof of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Appellant
Fisco (Kenya) Limited
Respondent
Paul Okelo Abaja
Respondent
Procedural Posture
Civil Appeal / Application for Striking Out Appeal and Related Orders
Legal Issues
- 1 Whether the appeal filed by the respondent should be struck out for failure to take essential procedural steps.
- 2 Whether the orders of the superior court should be set aside via the present application.
- 3 Whether the failure by the Receiver to file proofs of debt justifies striking out the appeal or granting a stay of proceedings.
Ratio Decidendi
The Court found that the application was unsupported by affidavit evidence demonstrating that the respondent had failed to take any essential procedural step in the appeal. The Court held that if the applicant was dissatisfied with previous orders or rulings of the superior court, the proper course was to appeal those decisions directly, not to seek relief through the present application. Furthermore, the Court determined that the failure by the Receiver to file proofs of debt did not constitute sufficient grounds to strike out the appeal or to grant a stay of proceedings. None of the conditions required for granting a stay or striking out the appeal had been satisfied. Consequently, the...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
- The three appeals filed in this matter by the respondent shall be listed for hearing at the same time.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, TUNOI & SHAH, JJ.A.)
CIVIL APPEAL (APPLICATION) NO. 109 OF 1995
BETWEEN
KENYA COMMERCIAL BANK LTD ............................... APPELLANT
AND
FISCO(KENYA) LIMITED ..................................... 1ST RESPONDENT
PAUL OKELO ABAJA ......................................... 2ND RESPONDENT
Appeal from the Ruling of the High Court ofKenya at Nairobi (Hon. Justice Shields) dated 17th day of July, 1996 in H.C.C.C NO. 2523 & 533 OF 1982) *********************
RULING OF THE COURT
The present application seeks several orders namely that the appeal filed by the respondent be struck out, that contain proceedings and orders of the superior court to set aside, that a Receiver appointed in respect of the applicant company do file proofs of debt and stay of proceedings. The supporting affidavit of this application does not support way of the orders sought. For instance, no affidavit evidence has been adduced to show that the respondent has failed to take an essential step in resect of its appeal. If the applicant is dissatisfied with the previous orders and rulings of the superior court he should appeal against them, not by way of the present application. the failure by the Receiver to file proofs of debt is not sufficient to strike out the appeal, and none of the conditions which must be satisfied before we can grant stay in the appeal if that is what the applicant is really seeking, have been satisfied.
In the result, this overloaded application must fail and it is dismissed with costs.
Dated and delivered at Nairobi this 3rd day of June, 1996.
A.M. AKIWUMI .................
JUDGE OF APPEAL
P.K. TUNOI .................
JUDGE OF APPEAL
A.B. SHAH .................
JUDGE OF APPEAL
It is also hereby ordered the three appeals filed in this matter by the respondent be listed for hearing at the same time.
Dated and delivered at Nairobi this 3rd day of June, 1996.
A.M. AKIWUMI .................
JUDGE OF APPEAL
P.K. TUNOI .................
JUDGE OF APPEAL
A.B. SHAH .................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR