[1996] KECA 172 (KLR)
The Court of Appeal found that the appeal was filed five months after the expiry of the prescribed period for filing appeals, as the proceedings and judgment were ready on 22nd January, 1991 and the last date for filing was 21st March, 1991. The appellant did not obtain leave to file the appeal out of time. As a...
Source-derived case information.
- Citation
- [1996] KECA 172 (KLR)
- Parties
- Appellant: Moses Muriithi Githui; Respondent: Edwin Hayanga Ohore
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 129 of 1991
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Out of Time, Leave of Court, Striking Out Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Muriithi Githui
Appellant
Edwin Hayanga Ohore
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the appeal was filed within the prescribed time limit.
- 2 Whether leave of court was obtained to file the appeal out of time.
- 3 Whether the appeal is competent in the absence of leave.
Ratio Decidendi
The Court of Appeal found that the appeal was filed five months after the expiry of the prescribed period for filing appeals, as the proceedings and judgment were ready on 22nd January, 1991 and the last date for filing was 21st March, 1991. The appellant did not obtain leave to file the appeal out of time. As a result, the appeal was incompetent and was struck out. The court exercised its discretion not to award costs.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: KWACH, SHAH & LAKHA, JJ.A.) CIVIL APPEAL NO. 129 OF 1991
BETWEEN
MOSES MURIITHI GITHUI .................................APPELLANT
AND
EDWIN HAYANGA OHORE .............................RESPONDENT
(An Appeal from the Judgment of the High Court of Kenya at Nairobi (Justice Tank) dated 26th June, 1990
in
H.C.C.C. NO. 4685 OF 1987) ****************
RULING OF THE COURT
The appeal against the decree of the superior court dated 26th June, 1990 was filed on 22nd August, 1991. According to the Certificate of Delay the proceedings and judgment were ready on the 22nd January, 1991. Accordingly, the last date for the filing of appeal was 21st March, 1991, with the result that the appeal was filed five months out of time without leave. In the circumstances, the appeal is incompetent and it is struck out. We make no order for costs.
Dated and delivered at Nairobi this 9th day of February, 1996.
R.O. KWACH ........................ JUDGE OF APPEAL
A.B. SHAH ....................... JUDGE OF APPEAL
A.A. LAKHA .......................
JUDGE OF APPEAL
I certify that this is a
true copy of the original. DEPUTY REGISTRAR