[2006] KECA 160 (KLR)
The Court held that the striking out of the plaint by the superior court conclusively determined the rights of the parties, making the decision appealable as of right without the need for leave. However, the notice of appeal was filed one day out of time, and no leave was sought or obtained to file it late. The...
Source-derived case information.
- Citation
- [2006] KECA 160 (KLR)
- Parties
- Appellant: Mjahid Suo; Appellant: Richard Baya; Respondent: Joseph Kashuru; Respondent: Mohamed Mwenzagu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 287 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Notice and Record of Appeal
- Outcome
- Application allowed; notice of appeal and record of appeal struck out with costs to the applicants.
- Legal Topics
- Appeal Timelines, Notice of Appeal, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mjahid Suo
Appellant
Richard Baya
Appellant
Joseph Kashuru
Respondent
Mohamed Mwenzagu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Notice and Record of Appeal
Legal Issues
- 1 Whether leave of the superior court was required for the respondents to appeal after the plaint was struck out.
- 2 Whether the notice of appeal was filed out of time and if so, whether it should be struck out.
Ratio Decidendi
The Court held that the striking out of the plaint by the superior court conclusively determined the rights of the parties, making the decision appealable as of right without the need for leave. However, the notice of appeal was filed one day out of time, and no leave was sought or obtained to file it late. The Court found this procedural defect to be fatal, regardless of the shortness of the delay. Since the respondents did not appear to contest the application, the Court allowed the applicants' motion and struck out both the notice of appeal and the record of appeal with costs to the applicants.
Court Disposition
Application allowed; notice of appeal and record of appeal struck out with costs to the applicants.
Orders
- The notice of appeal dated and lodged in court on 8th October 2004 is struck out.
- The record of appeal lodged on 2nd December 2004 is struck out.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Civil Appeal 287 of 2004
MJAHID SUO
RICHARD BAYA ……………..............................................…………………………. APPELLANTS
AND
JOSEPH KASHURU
MOHAMED MWENZAGU ……………...............................................……………. RESPONDENTS
(Appeal from the ruling and order of the High Court of Kenya at Malindi (Ouko J.) dated the 23rd of September, 2004
in
H.C.C.C. NO.51 OF 2002
***********
RULING OF THE COURT
We do not agree with Mr. Odongo, learned counsel for the applicant, that the respondents to the motion needed leave of the superior court to enable them appeal to this court. The plaint was struck out and as far as the superior court was concerned, the striking out of the plaint conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit – see Order 42 Rule 3, Civil Procedure Rules. So we cannot strike out the appeal on that basis. But Mr. Odongo also relies on the fact that the notice of appeal was itself filed one day late and there was no leave either of the superior court or of this Court to do so. That point is unanswerable and it does not matter that the delay involved was only one day. The respondents to the motion were served with a notice for to-day’s hearing. Neither the respondents nor their counsel is here to contest this point. Accordingly we allow the applicants notice of motion dated and lodged in this Court on 21st December, 2004 and order that the notice of appeal dated and lodged in court on 8th October 2004 and the record of appeal lodged on 2nd December 2004 be and are hereby struck out with costs to the appeal and application applicants.
Dated and delivered at Mombasa this 21st day of July, 2006.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P.K. TUNOI
…………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.DEPUTY REGISTRAR