[2002] KECA 262 (KLR)
The court found that the respondent failed to institute the intended appeal within the prescribed sixty-day period after lodging the Notice of Appeal, and that the respondent's inability to retrieve certain documentary exhibits did not excuse this delay. The respondent had not applied for directions from the court...
Source-derived case information.
- Citation
- [2002] KECA 262 (KLR)
- Parties
- Applicant: Philip Wachira Mwaniki; Respondent: Blueshield Insurance Co. Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 13 of 2002
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Application granted. Notice of Appeal struck out with costs to the applicant.
- Legal Topics
- Appeals, Notice of Appeal, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Wachira Mwaniki
Applicant
Blueshield Insurance Co. Ltd
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondent's Notice of Appeal should be struck out for failure to institute the intended appeal within the prescribed period.
- 2 Whether the respondent's inability to retrieve certain documentary exhibits justifies the delay in lodging the appeal.
Ratio Decidendi
The court found that the respondent failed to institute the intended appeal within the prescribed sixty-day period after lodging the Notice of Appeal, and that the respondent's inability to retrieve certain documentary exhibits did not excuse this delay. The respondent had not applied for directions from the court regarding the missing exhibits as required by rule 85(3) of the Court of Appeal Rules. This omission was deemed inexcusable and disentitled the respondent from relying on the missing exhibits as justification for the delay. Consequently, the court held that the applicant's motion to strike out the Notice of Appeal was meritorious and granted the application, striking out the...
Court Disposition
Application granted. Notice of Appeal struck out with costs to the applicant.
Orders
- The respondent's Notice of Appeal dated 7th May, 1999 and lodged in the superior court on 12th May, 1999 is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, O'KUBASU & KEIWUA, JJ.A.) CIVIL APPLICATION NO. NAI. 13 OF 2002
BETWEEN
PHILIP WACHIRA MWANIKI......................................... APPLICANT
AND
BLUESHIELD INSURANCE CO. LTD .......................RESPONDENT
(An application to strike out a Notice of Appeal in an intended appeal from Judgment of the High Court of Kenya at Nairobi (Mr. Justice Mbogholi) dated 6th May, 1999.
in H.C.C .C. NO. 1799 OF 1991) *************
RULING OF THE COURT
In this Notice of Motion which is made under rule 80ofthe Court of Appeal Rules,hereinafter calledthe Rules,theapplicant has sought to have the respondent's Notice of Appealdated 7th May, 1999 and date-stamped in the superior court on12th May, 1999 struck out for the reasons that the respondenthas since the lodgement of the said Notice of Appeal deliberately failed to institute its intended appeal against the decision of the superior court given on 6th May 1999 with the resultant delay in the conclusion of the litigation between them to his detriment.
According to the respondent, the proceedings and judgment relevant to its intended appeal were collected from the supEtiGan 8th May, 2001 but without certified copies of some documentary exhibits tendered in evidence in that court which allegedly had subsequently been collected by the then Counsel for the applicant in the superior court, Mr. F. N. Wamalwa
Efforts to retrieve these exhibits have not been successful.Hence the respondent's inability to lodge its intended appealagainst the decision of the superior court dated 6th May,1999. This notwithstanding, however, the respondent has notto date applied to a judge or registrar of the superior court for directions as to whether or not the missing documentary exhibits should be excluded from the record of appeal under rule 85 (3)ofthe Rules.This lapse on the part of therespondent is inexcusable and disentitles it from relying on the missing documentary exhibits in the superior court for its inability to lodge its intended appeal within the prescribed period of sixty days of the date when the Notice of Appeal was lodged in the superior court - 12th May, 1999 - a period inexcess of two years. In these circumstances, the applicant's application to strike out the said Notice of Appeal is irresistible. The same is therefore granted with the result that the respondent's Notice of Appeal dated 7th May, 1999 and lodged in the superior court on 12th May, 1999 is struck out with costs to the applicant.
Dated and delivered at Nairobi this 5th day of July,2002.
J. E. GICHERU .................. JUDGE OF APPEAL
E. O'KUBASU .................. JUDGE OF APPEAL
M. Ole KEIWUA .................. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR