[1996] KECA 108 (KLR)
The Court found that the appeal was filed out of time and that the notice of appeal was also filed out of time. The appellants had not made an application for enlargement of time to file the notice of appeal, and therefore the defect was incurable by an application to enlarge time for filing the record of appeal. As...
Source-derived case information.
- Citation
- [1996] KECA 108 (KLR)
- Parties
- Appellant: Rev. Peter A Indalo; Appellant: Oyani Christian Rural Services; Respondent: Fanana Investment Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 30 of 1996
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out with costs.
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Out of Time, Striking Out Appeal, Enlargement of Time, Notice of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Peter A Indalo
Appellant
Oyani Christian Rural Services
Appellant
Fanana Investment Ltd
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for being filed out of time.
- 2 Whether the application for enlargement of time to file the record of appeal can cure the defect of a late notice of appeal.
Ratio Decidendi
The Court found that the appeal was filed out of time and that the notice of appeal was also filed out of time. The appellants had not made an application for enlargement of time to file the notice of appeal, and therefore the defect was incurable by an application to enlarge time for filing the record of appeal. As a result, the appeal was incompetent and was struck out with costs to the respondent.
Court Disposition
Appeal struck out with costs.
Orders
- The application to strike out the appeal is granted with costs.
- The appeal is struck out with costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OMOLO, AKIWUMI & LAKHA JJ.A)
CIVIL APPEAL NO 30 OF 1996
BETWEEN
REV. PETER A INDALO……….……...………..APPELLANT
OYANI CHRISTIAN RURAL SERVICES………..APPELLANT
AND
FANANA INVESTMENT LTD…….....………....RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Kisumu (Mr. Justice Mango) dated 29th July, 1993
IN
H. C. C. APPEAL NO. 6 OF 1993)
*****************************
RULING OF THE COURT
An application has been made by the respondent to strike out the appeal under the rule 80 of the Rules of this court. It is conceded and, in our opinion rightly, by the appellants’ advocate that the appeal is out of time. The application made by the appellants for enlargement of time to file the record of appeal out of time, for the second time, will not be of assistance as the Notice of Appeal was filed out of time and no application has been made for enlargement of time to cure this.
Accordingly, the application to strike out succeeds and it is granted with costs. In consequence, the appeal is struck out with costs.
Made at Kisumu this 22nd day of March, 1996.
R. S. C. OMOLO
………………….
JUDGE OF APPEAL
A. M. AKIWUMI
………………………
JUDGE OF APPEAL
A. A. LAKHA
……………………..
JUDGE OF APPEAL
I certify that this is a true copy f of the original.
DEPUTY REGISTRAR