[1998] KECA 105 (KLR)
The court found that the Notice of Appeal was lodged with the registrar of the superior court within the 14-day period stipulated by rule 74(2) of the Court of Appeal Rules, as the decision was delivered on 13.5.96 and the notice was lodged on 20.5.96. The court rejected the argument that the operative date was when...
Source-derived case information.
- Citation
- [1998] KECA 105 (KLR)
- Parties
- Applicant: Njoroge Nganga; Applicant: John Marenga; Respondent: Thomas Olando Ogola
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 222 of 1998
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs to the appellants
- Judges
- JE Gicheru, RO Kwach, E Owuor
- Legal Topics
- Notice of Appeal, Time Limits, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoroge Nganga
Applicant
John Marenga
Applicant
Thomas Olando Ogola
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal was lodged out of time contrary to the Court of Appeal Rules.
- 2 Whether leave of the court was required to lodge the Notice of Appeal out of time.
Ratio Decidendi
The court found that the Notice of Appeal was lodged with the registrar of the superior court within the 14-day period stipulated by rule 74(2) of the Court of Appeal Rules, as the decision was delivered on 13.5.96 and the notice was lodged on 20.5.96. The court rejected the argument that the operative date was when the notice reached the registry of the Court of Appeal, holding instead that the relevant date is when it is lodged with the registrar of the superior court. Consequently, the application to strike out the Notice of Appeal lacked merit and was dismissed with costs to the appellants.
Court Disposition
application dismissed with costs to the appellants
Orders
- The application to strike out the Notice of Appeal is dismissed.
- Costs awarded to the appellants (respondents in the motion).
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT KISUMU
CIVIL APPL NO.NAI.222 OF 98
NJOROGE NGANGA AND ANOTHER............................APPLICANT
AND
THOMAS OLANDO OGOLA........................................RESPONDENT
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules seeking an order to strike out the Notice of Appeal lodged by the appellants Njoroge Nganga and John Marenga on the ground that the said Notice was lodged out of time and without the leave of the Court. The copy of the Notice of Appeal dated 17. 5.96 annexed to the replying affidavit of Mr. Siganga shows clearly that it was lodged with the registrar of the superior court as required by rule 74(1) of the Rules of this Court of 20. 5.96.
The decision against which the appellants wished to appeal was given by Wambilyangah J, on 13. 5.96. There is no room for any doubt that the notice was lodged within 14 days as provided by rule 74(2) of the Rules of this court. We think, with respect, that Mr. Ombijah is wrong in thinking that the operative date was 28. 5.96, when the Notice of Appeal reached the registry of this Court in terms of rule 75 of the Rules of this Court. There is no merit in this application and we order it dismissed with costs to the appellants (respondents in this motion)
Dated and delivered at Kisumu this 26th day of November, 1998.
J. E. GICHERU
JUDGE OF APPEAL
R. O. KWACH
JUDGE OF APPEAL
E. OWUOR
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.