[1998] KECA 208 (KLR)
The Court found that the notice of appeal was filed out of time and was not served on the applicant as required by rule 76 of the Court of Appeal Rules. The respondent conceded these facts, and an application for extension of time had already been dismissed with no further reference made. As a result, the procedural...
Source-derived case information.
- Citation
- [1998] KECA 208 (KLR)
- Parties
- Applicant: Lee Sheh Poong; Respondent: Mwaniki Njoroge Makau; Respondent: Josiah Kimemia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 48 of 1998
- Procedural Posture
- Civil Application / Application for Striking Out Notice of Appeal
- Outcome
- Application allowed. Notice of appeal struck out with costs.
- Legal Topics
- Striking Out Appeal, Notice of Appeal, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lee Sheh Poong
Applicant
Mwaniki Njoroge Makau
Respondent
Josiah Kimemia
Respondent
Procedural Posture
Civil Application / Application for Striking Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal filed on 3rd June 1997 should be struck out for being out of time and for failure to serve as required by the rules.
Ratio Decidendi
The Court found that the notice of appeal was filed out of time and was not served on the applicant as required by rule 76 of the Court of Appeal Rules. The respondent conceded these facts, and an application for extension of time had already been dismissed with no further reference made. As a result, the procedural defects were fatal, and the notice of appeal could not be sustained. The Court therefore struck out the notice of appeal with costs to the applicant, including the costs of the application.
Court Disposition
Application allowed. Notice of appeal struck out with costs.
Orders
- The notice of appeal filed on 3rd June 1997 is struck out.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, SHAH & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 48 OF 1998
BETWEEN
LEE SHEH POONG .......................................APPLICANT
AND
MWANIKI NJOROGE MAKAU
JOSIAH KIMEMIA .......................................RESPONDENTS
(Application for striking out Notice of Appeal and Record of Appeal in an intended appeal from the Judgment and Decree of the High Court of Kenya at Nakuru (Lady Justice S. Ondeyo) dated 19th May, 1997 in H.C.C.C. NO. 455 OF 1995) ***************
RULING OF THE COURT
This is an application under rule 80 of the Rules of this Court to strike out the Notice of Appeal filed on 3rd June, 1997 but not served on the applicant in breach of rule 76 of the Rules of this Court. It is conceded by Mr. Nyakeno that the notice of appeal itself was out of time. An application for extension of time was dismissed by a single judge of this Court on 11th March, 1998 and there has been no reference from such Iatn orfdoelrl.ows that the application must succeed. Accordingly, the notice of appeal filed on 3rd June 1997 is struck out with costs including the costs of this application.
Dated and delivered at Nairobi this 27th day of April,
1998. J.E. GICHERU ................
JUDGE OF APPEAL
A.B. SHAH .................
JUDGE OF APPEAL
A.A. LAKHA ..................
JUDGE OF APPEAL I certify that this is a true copy of the original.
DEPUTY REGISTRAR