[2007] KECA 386 (KLR)
The Court found that since the record of appeal was served out of time without leave of the court, and the respondent had not made a timely application for extension of time despite being served with the motion nearly a year prior, there was no valid basis to refuse the applicant's prayer to strike out the appeal....
Source-derived case information.
- Citation
- [2007] KECA 386 (KLR)
- Parties
- Applicant: Khan Mohammed Salim T/A Khan & Associates Advocates; Respondent: National Industrial Credit Bank & 3 Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 148 of 2006
- Procedural Posture
- Civil Application / Application to Strike Out Appeal
- Outcome
- Civil Appeal No. 96 of 2006 struck out with costs to the applicant.
- Legal Topics
- Appeal Striking Out, Service of Record, Extension of Time, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khan Mohammed Salim T/A Khan & Associates Advocates
Applicant
National Industrial Credit Bank & 3 Others
Respondent
Procedural Posture
Civil Application / Application to Strike Out Appeal
Legal Issues
- 1 Whether the record of appeal served out of time without leave of the court renders the appeal liable to be struck out.
- 2 Whether the respondent should be granted leave to apply for extension of time after significant delay.
Ratio Decidendi
The Court found that since the record of appeal was served out of time without leave of the court, and the respondent had not made a timely application for extension of time despite being served with the motion nearly a year prior, there was no valid basis to refuse the applicant's prayer to strike out the appeal. The Court determined that the procedural irregularity was fatal and warranted the striking out of Civil Appeal No. 96 of 2006. The Court also found it unnecessary to address other prayers in the motion given the dispositive nature of the procedural default.
Court Disposition
Civil Appeal No. 96 of 2006 struck out with costs to the applicant.
Orders
- Civil Appeal No. 96 of 2006 is hereby struck out.
- Costs of the appeal awarded to the applicant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Civil Appli 148 of 2006
KHAN MOHAMMED SALIM
T/A KHAN & ASSOCIATES ADVOCATES....................................................APPLICANT
AND
NATIONAL INDUSTRIAL CREDIT BANK & 3 OTHERS ...................RESPONDENTS
(An application to strike out Civil Appeal No. 17 of 2006
from a ruling and order of the High Court of Kenya at Kisumu (Mr. Justice B. Tanui) dated 14th October, 2002
in
H.C.C.C. NO. 89 OF 2000)
************
RULING OF THE COURT:
Mr. Kiboi, learned counsel for the respondent herein concedes that the record of appeal which they lodged on 27th April, 2006 was served out of time on 5th May, 2006. He asks us to allow him to make an application for extension of time but he agrees that the present motion was served on him nearly one year ago. There can be no basis for our acceding to that request and as the record of appeal was in fact served out of time without the leave of the Court, there cannot be any valid answer to the prayer in paragraph (c) of the motion dated 12th May, 2006 and lodged in the Court on 17th May, 2006. We think we ought not to deal with the issue of the validity of the order which is raised in paragraph (a) of the motion.
In view of the stand we have taken on prayer (c) we think it is unnecessary to deal with prayer (a) and that being so, we allow the motion with the result that Civil Appeal No. 96 of 2006 be and is hereby struck out with the costs thereof to the applicant. We also award to the applicant the costs of the motion.
Dated and delivered at Kisumu this 21st day of March, 2007.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………….
JUDGE OF APPEAL
W. S. DEVERELL
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR