[1999] KECA 76 (KLR)
The court found that the applicants acted with reasonable speed in bringing the present motion after their previous appeal was struck out. The respondent, though served, did not oppose the motion or file any affidavit in response. In the absence of opposition and given the promptness of the applicants, the court...
Source-derived case information.
- Citation
- [1999] KECA 76 (KLR)
- Parties
- Applicant: Nganga Gichuri; Applicant: David Kihanya Nganga; Respondent: Ndungu Nganga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 105 of 1999
- Procedural Posture
- Civil Application / Ruling on Motion to File Fresh Appeal After Previous Appeal Struck Out
- Outcome
- motion allowed
- Legal Topics
- Appeal Struck Out, Reinstatement of Appeal, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nganga Gichuri
Applicant
David Kihanya Nganga
Applicant
Ndungu Nganga
Respondent
Procedural Posture
Civil Application / Ruling on Motion to File Fresh Appeal After Previous Appeal Struck Out
Legal Issues
- 1 Whether the applicants should be granted leave to file a fresh notice of appeal after their previous appeal was struck out.
- 2 Whether the applicants acted with reasonable speed in bringing the current motion.
- 3 Whether the absence of opposition from the respondent affects the outcome of the motion.
Ratio Decidendi
The court found that the applicants acted with reasonable speed in bringing the present motion after their previous appeal was struck out. The respondent, though served, did not oppose the motion or file any affidavit in response. In the absence of opposition and given the promptness of the applicants, the court exercised its discretion to allow the motion, granting leave to file a fresh notice of appeal and record of appeal within specified timelines. The costs of the motion were ordered to be in the intended appeal.
Court Disposition
motion allowed
Orders
- The applicants must file and serve a fresh notice of appeal within seven days of the date hereof.
- The applicants must file their record of appeal within twenty-one days from the date of filing the notice of appeal.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 105 OF 1999 BETWEEN NGANGA GICHURI DAVID KIHANYA NGANGA ...............................APPLICANTS AND NDUNGU NGANGA .......................................RESPONDENT
R U L I N G
The applicants' previous appeal was struck out on the 21st April, 1999. This motion was filed in court on the 6th May, 1999. The applicants acted with reasonable speed after their ill-fated appeal was struck out. The respondent though served with to-day's hearing, are not here to oppose the motion. In fact they have not even filed an opposing affidavit. Accordingly, I allow the motion and make the following orders:-
1. The applicants must file and serve a fresh notice of appeal within seven days of the date hereof.
2. The applicants must file their record of appeal within twenty-one days from the date of filing the notice of appeal. 3. The costs of this motion shall be in the intended appeal.
Dated and delivered at Nairobi this 29th day of September, 1999.
R. S. C. OMOLO --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR