[2018] KEELC 2275 (KLR)
The court found that although the respondent failed to file the record of appeal and other documents in a timely manner, the delay was sufficiently explained as being due to the mistakes of previous advocates. The respondent had since taken steps to rectify the omissions by obtaining a certified copy of the decree,...
Source-derived case information.
- Citation
- [2018] KEELC 2275 (KLR)
- Parties
- Plaintiff: Lucia Teeka; Defendant: Joel Zakayo Nchoe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 142 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out and Dismiss Appeal
- Outcome
- Application to strike out and dismiss the appeal declined. Leave granted for appeal to be heard within 60 days.
- Judges
- MN Kullow
- Legal Topics
- Appeal Striking Out, Record of Appeal, Delay in Filing, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucia Teeka
Plaintiff
Joel Zakayo Nchoe
Defendant
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out and Dismiss Appeal
Legal Issues
- 1 Whether the appeal should be struck out or dismissed for failure to comply with procedural requirements.
- 2 Whether the delay in filing the record of appeal and other documents can be excused due to mistakes of previous advocates.
- 3 Whether it is just to dismiss the appeal in the circumstances.
Ratio Decidendi
The court found that although the respondent failed to file the record of appeal and other documents in a timely manner, the delay was sufficiently explained as being due to the mistakes of previous advocates. The respondent had since taken steps to rectify the omissions by obtaining a certified copy of the decree, ensuring the lower court file was before the court, and filing the record of appeal. The court held that dismissing the appeal would be draconian and contrary to the interests of justice as enshrined in Article 159 of the Constitution of Kenya, which mandates that justice should not be defeated by procedural technicalities. The court therefore exercised its discretion to...
Court Disposition
Application to strike out and dismiss the appeal declined. Leave granted for appeal to be heard within 60 days.
Orders
- The application to strike out and dismiss the appeal is declined.
- Leave is granted for the appeal to be heard within 60 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 142 OF 2017
FORMERLY NAIVASHA CIVIL APPEAL NO. 26 OF 2015
LUCIA TEEKA...............................PLAINTIFF
-VERSUS-
JOEL ZAKAYO NCHOE.............DEFENDANT
RULING
The Application before me is the Notice of Motion dated 5th April, 2017 which was brought under section 3 of the Civil Procedure Act and seeks orders of striking out the purported Appeal and also dismissal of the same. The Application was based on the grounds that the Appellant had failed to comply with the provisions of Section 79 (G) of the Civil Procedure Act, Order 42 Rule (2) of the Civil Procedure Rules and lastly that there is no Appeal on which the court can pronounce itself.
The Application was supported by the Affidavit of Joel Zakayo Nchoe in which he contended that no Appeal was ever filed to date and the Respondent has not adduced sufficient grounds as to why the Appeal was not filed since 4th February, 2014 when Judgment was delivered. He further stated that the Appellant has failed to annex a certified copy of the decree and the same is fatally defective.
The Applicant also averred that no record of Appeal was filed by the Respondent and hence there is nothing for the court to address its mind to as an Appeal.
The Application was opposed by the Respondent who had filed a Replying Affidavit in which he stated that he was required to file a Notice of Appeal which he did but waiting for admission of the Appeal to enable him file a record of Appeal and that the said Appeal was never admitted nor directions given. He further contends that the delay to act was as a result of failure on the part of the previous advocates which led the Applicant to file the instant application and it will serve the interest of justice if the appeal will be heard on merit.
When the Application came before me for hearing the counsel for the respective parties made submissions.
Having read the Application before me and the submissions made by the counsel I find that the Respondent herein had various challenges as to why the record of appeal was not filed. He attributes the mistakes to his previous advocates and even though the courts’ have at various times stated that parties have a duty to follow on their matters it will also be unfair to visit the mistake to punish a litigant for the mistakes of his advocates.
From the records and the Replying Affidavit I find that the Respondent has taken stages to fast track the issues. He has obtained a certified copy of the decree, ensured that the lower court file is before the court and lastly filed his record of appeal and having done the above it is my finding that dismissal of the Appeal will be draconian and will not serve the interest of justice as embedded under Article 159 of the Constitution of Kenya.
In view of the above I will exercise my discretion and thus decline to dismiss the appeal as prayed in the application and I grant leave and order that the appeal be heard within 60 days.
Each party will bear the costs of the application.
DATED, SIGNED and DELIVERED in open court atNAROKon this20th day ofJuly, 2018
Mohammed Noor Kullow
Judge
20/7/18
In the presence of:-
Mr Lel holding brief for Simiyu for the Respondent
Mr Kiptoo holding brief for Jaoko for the Applicant
CA:Chuma
Mohammed Noor Kullow
Judge
20/7/18