[2018] KECA 497 (KLR)
The Court found that the appellant, having been served with a notice to show cause, failed to attend court and took no action to advance the notice of appeal. In accordance with Section 84 of the Court of Appeal Rules and Rule 4(2) of the Court of Appeal Election Petition Rules 2017, the Court exercised its...
Source-derived case information.
- Citation
- [2018] KECA 497 (KLR)
- Parties
- Appellant: Hon. Mary Emaase Otuche; Respondent: Hon. Geoffrey Omuse; Respondent: Independent Electoral and Boundaries Commission (IEBC)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 10 of 2018
- Procedural Posture
- Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
- Outcome
- Notice of appeal struck out; costs awarded to the first respondent.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Mary Emaase Otuche
Appellant
Hon. Geoffrey Omuse
Respondent
Independent Electoral and Boundaries Commission (IEBC)
Respondent
Procedural Posture
Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal filed by the appellant should be struck out for want of prosecution.
- 2 Whether costs should be awarded to the first respondent.
Ratio Decidendi
The Court found that the appellant, having been served with a notice to show cause, failed to attend court and took no action to advance the notice of appeal. In accordance with Section 84 of the Court of Appeal Rules and Rule 4(2) of the Court of Appeal Election Petition Rules 2017, the Court exercised its discretion to strike out the notice of appeal. The absence of any action or representation by the appellant justified the order, and costs were awarded to the first respondent as the successful party.
Court Disposition
Notice of appeal struck out; costs awarded to the first respondent.
Orders
- The notice of appeal dated 27th February, 2018 is struck out under section 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules 2017.
- Costs are awarded to the first respondent.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E . M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
ELECTION PETITION CIVIL APPEAL NO. 10 OF 2018
BETWEEN
HON. MARY EMAASE OTUCHO..........................................APPELLANT
AND
HON. GEOFFREY OMUSE.....................................FIRST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION (IEBC).............SECOND RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Busia,(Kiarie, J.)dated 31st January, 2018
in
HIGH COURT ELECTION PETITION NO. 1 OF 2017)
***********************************
ORDER OF THE COURT
The appellant was served with a notice to show cause why the notice of appeal filed on 27/2/2018 should not be struck out. As the appellant has not attended court and no action has been taken in furtherance of the notice, we strike out the notice of appeal dated 27th February, 2018 under section 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules 2017.
We award costs to the 1st respondent.
DATED at Kisumu this 21st June, 2018.
E. M. GITHINJI
………………………….
JUDGE OF APPEAL
HANNAH OKWENGU
………………….………
JUDGE OF APPEAL
J. MOHAMMED
…………………………..
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.