[1998] KECA 151 (KLR)
The Court found that the notice of appeal did not comply with rules 74 and 76 of the Court of Appeal Rules and that the record of appeal was lodged out of time without the requisite leave. As these procedural requirements are mandatory, their contravention rendered the appeal fatally defective and incompetent. The...
Source-derived case information.
- Citation
- [1998] KECA 151 (KLR)
- Parties
- Applicant: Mombasa Development Limited; Respondent: Cargill East Africa Ltd.; Respondent: Kenya Transit and Trading Co. Ltd.; Respondent: J. B. Maina & Company Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 167 of 1998
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal and Appeal
- Outcome
- Application allowed. Appeal struck out as incompetent.
- Judges
- RO Kwach, E Owuor
- Legal Topics
- Appeal Striking Out, Non Compliance With Rules, Notice of Appeal, Record of Appeal, Time Limits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mombasa Development Limited
Applicant
Cargill East Africa Ltd.
Respondent
Kenya Transit and Trading Co. Ltd.
Respondent
J. B. Maina & Company Ltd.
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal and Appeal
Legal Issues
- 1 Whether the notice of appeal was lodged in compliance with rules 74 and 76 of the Court of Appeal Rules.
- 2 Whether the record of appeal was lodged within the prescribed time and with the requisite leave.
- 3 Whether the appeal is fatally defective and incompetent.
Ratio Decidendi
The Court found that the notice of appeal did not comply with rules 74 and 76 of the Court of Appeal Rules and that the record of appeal was lodged out of time without the requisite leave. As these procedural requirements are mandatory, their contravention rendered the appeal fatally defective and incompetent. The Court therefore allowed the application and struck out the appeal, awarding costs to the applicant.
Court Disposition
Application allowed. Appeal struck out as incompetent.
Orders
- The notice of appeal lodged on 1st February 1996 is struck out.
- Civil Appeal No. 312 of 1997 is struck out.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: KWACH, TUNOI & OWUOR, JJ.A.)
CIVIL APPLICATION NO. NAI. 167 OF 1998
BETWEEN
MOMBASA DEVELOPMENT LIMITED ....................... APPLICANT
AND
1. CARGILL EAST AFRICA LTD. .................. 1ST RESPONDENT
2. KENYA TRANSIT AND TRADING CO. LTD. 2ND RESPONDENT
3. J. B. MAINA & COMPANY LTD. ................ 3RD RESPONDENT
(Application to strike out the Judgment of the High Court of Kenya at Mombasa (Justice Mbogholi) dated 30th day of January, 1996
in
H.C.C.S. NO. 146 OF 1993)
*******************
RULING OF THE COURT
By this motion the applicant, the first respondent in the appeal, seeks two orders. First, to strike out the notice of appeal lodged by the appellant on the 1st day of February, 1996 for failure to comply with rules 74 and 76 of the Rules of this Court; and, secondly, to strike out Civil Appeal No. 312 of 1997.
This application is not, in earnest, opposed by the appellant. Its counsel, Mr. Wasuna, concedes that the notice of appeal actually contravened the said rules and; moreover, the record of appeal was lodged in this Court out of time and without the requisite leave. The application must therefore succeed. Consequently, the appeal is fatally defective and is incompetent. It is hereby ordered struck out. The costs of this application and of the appeal are awarded to the applicant.
Made at Mombasa this 17th day of July, 1998.
R. O. KWACH
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR