[2005] KECA 124 (KLR)
The Court found that the appeal was incompetent because the order forming the basis of the appeal was incurably defective and the letter bespeaking copies of proceedings was not copied to the respondents, thus the appeal was filed out of time. The respondent's counsel conceded these points, and the Court accordingly...
Source-derived case information.
- Citation
- [2005] KECA 124 (KLR)
- Parties
- Applicant: Musa Cherutich Sirma; Applicant: Henry Ngetich; Applicant: The Electoral Commission of Kenya; Respondent: Joseph Leboo Rop
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 177 of 2005
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- J Wakiaga
- Legal Topics
- Striking Out Appeal, Procedural Defects, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Cherutich Sirma
Applicant
Henry Ngetich
Applicant
The Electoral Commission of Kenya
Applicant
Joseph Leboo Rop
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out due to a defective order forming the basis of the appeal.
- 2 Whether failure to copy the letter bespeaking proceedings to the respondents rendered the appeal out of time.
Ratio Decidendi
The Court found that the appeal was incompetent because the order forming the basis of the appeal was incurably defective and the letter bespeaking copies of proceedings was not copied to the respondents, thus the appeal was filed out of time. The respondent's counsel conceded these points, and the Court accordingly granted the application to strike out the appeal.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal filed on 14th July, 2005 is struck out.
- Costs of the application and of the appeal awarded to all the respondents.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEALAT NAKURU(CORAM: TUNOI, O’KUBASU & WAKI, JJ.A.)Civil Appeal 177 of 2005BETWEENMUSA CHERUTICH SIRMA……....…………… 1ST APPLICANT/RESPONDENTHENRY NGETICH ……………………………… 2ND APPLICANT/RESPODNENTTHE ELECTORAL COMMISSION OF KENYA…………………………………...…… 3RDAPPLICANT/RESPONDENTANDJOSEPH LEBOO ROP ……………………………… RESPONDENT/APPELLANT
(Application to strike out record of appeal from the ruling and order of the High Court of Kenya at Nakuru (Justice Muga Apondi) dated 30thJuly, 2004 in H.C.ELECTION PETITION NO. 5 OF 2003) ***************************RULING OF THE COURT
The notice of motion dated the 20th July, 2005 was taken out by the 1st respondent in the main appeal. It seeks an order that the appeal be struck out for the reasons; firstly that the order which is the basis of the appeal is incurably defective, and secondly, that the letter bespeaking copies of proceedings was not copied to them, thus rendering the filing of the appeal out of time.
Learned Counsel for the appellant in the main appeal, Mr. Oduor, concedes that those defects render the appeal incompetent and we so find ourselves. Consequently, the application is granted and the appeal filed on 14th July, 2005 is hereby struck out. Costs of the application and of the appeal to all the respondents.DATED this 29th day of September, 2005. P.K. TUNOI …………… JUDGE OF APPEAL
E.O. O’KUBASU ……………. JUDGE OF APPEAL
P.N. WAKI ……………. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR