[1997] KECA 145 (KLR)
The Court found that the respondent failed to serve the Notice of Appeal upon the applicants within the seven-day period prescribed by rule 76 of the Court of Appeal Rules. This failure was admitted by the respondent's counsel. The rule is mandatory, and non-compliance is fatal to the Notice of Appeal. Consequently,...
Source-derived case information.
- Citation
- [1997] KECA 145 (KLR)
- Parties
- Applicant: Mary Kirigo Kamundi; Applicant: Dickson Mukunyi Kamundi; Applicant: Gordon Nderitu Kamundi; Applicant: James Peter Ngunjiru Kamundi; Respondent: Esther Wangui Kamundi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 158 of 1997
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of Appeal struck out. Costs awarded to applicants.
- Judges
- Office of the Registrar Tribunals, GS Pall
- Legal Topics
- Service of Process, Appeals, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kirigo Kamundi
Applicant
Dickson Mukunyi Kamundi
Applicant
Gordon Nderitu Kamundi
Applicant
James Peter Ngunjiru Kamundi
Applicant
Esther Wangui Kamundi
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal was served upon the applicants within the prescribed seven days as required by rule 76 of the Court of Appeal Rules.
- 2 Whether failure to serve the Notice of Appeal within the prescribed period warrants striking out the Notice of Appeal.
Ratio Decidendi
The Court found that the respondent failed to serve the Notice of Appeal upon the applicants within the seven-day period prescribed by rule 76 of the Court of Appeal Rules. This failure was admitted by the respondent's counsel. The rule is mandatory, and non-compliance is fatal to the Notice of Appeal. Consequently, the Court allowed the application and struck out the Notice of Appeal lodged by the respondent, awarding costs to the applicants.
Court Disposition
Application allowed. Notice of Appeal struck out. Costs awarded to applicants.
Orders
- The Notice of Appeal lodged on 29th July, 1996 by the respondent is struck out.
- The costs of this application are awarded to the applicants.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: GICHERU, TUNOI & PALL, JJ.A.)
CIVIL APPLICATION NO. NAI. 158 OF 1997 (NYR.9/97)
BETWEEN
1. MARY KIRIGO KAMUNDI2. DICKSON MUKUNYI KAMUNDI3. GORDON NDERITU KAMUNDI4. JAMES PETER NGUNJIRU KAMUNDI ...................... APPLICANTSANDESTHER WANGUI KAMUNDI .................................. RESPONDENT(Application for striking out Notice of Appeal from a
Ruling and Order of the High Court of Kenya at Nyeri
(Justice Osiemo) dated 25th July, 1996
in
H.C.C.C. NO. 183 OF 1995)
**************
RULING OF THE COURT
It is admitted by the counsel for the respondent, Mr. Mwangi, that Notice of Appeal was not served upon the applicants or any of them within seven days period as prescribed by rule 76 of the Court of Appeal Rules.
This application therefore must succeed and is allowed. We hereby strike out the Notice of Appeal lodged on 29th July, 1996 by the respondent. We award the costs of this application to the applicants.
Made at Nyeri this 30th day of October, 1997. J. E. GICHERU ................ JUDGE OF APPEAL P. K. TUNOI ............... JUDGE OF APPEAL G. S. PALL ............... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR