[2005] KECA 201 (KLR)
The Court found that the grounds advanced by the applicant for striking out the record of appeal were baseless and that the application was frivolous. Upon perusal of the record, the Court was satisfied that there was no fatal or incurable defect as alleged. Consequently, the application to strike out the record of...
Source-derived case information.
- Citation
- [2005] KECA 201 (KLR)
- Parties
- Applicant: Samwel Orucho Onyaru; Respondent: Samwel Nyakenogo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 24 of 2004
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- application dismissed
- Judges
- AM Githinji
- Legal Topics
- Striking Out Appeal, Record of Appeal Defects, Variance Between Decree and Memorandum, Costs in Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Orucho Onyaru
Applicant
Samwel Nyakenogo
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the record of appeal is fatally and incurably defective.
- 2 Whether there is a valid order appealed against.
- 3 Whether the decree and memorandum of appeal are at variance.
Ratio Decidendi
The Court found that the grounds advanced by the applicant for striking out the record of appeal were baseless and that the application was frivolous. Upon perusal of the record, the Court was satisfied that there was no fatal or incurable defect as alleged. Consequently, the application to strike out the record of appeal was dismissed, and costs were ordered to be in the appeal.
Court Disposition
application dismissed
Orders
- The notice of motion dated 15th September, 2004 and filed on 4th October, 2004 is dismissed.
- Costs of the motion shall be in the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU (CORAM: OMOLO, O’KUBASU & GITHINJI, JJ.A.) CIVIL APPEAL (APPLI) 24 OF 2004 BETWEEN SAMWEL ORUCHO ONYARU ………………… APPLICANT/RESPONDENT AND SAMWEL NYAKENOGO ………………………. RESPONDENT/APPELLANT
(Application to strike out Record of Appeal in Civil Appeal No. 24 of 2000 being an Appeal from the judgment and decree of the High Court of Kenya at Kisii (Birech, Commissioner of Assize) dated 30th September, 2002 in H.C.C.C. NO. 173 OF 1999 (O.S.) ********************** RULING OF THE COURT
We have before us an application brought by way of notice of motion, in which the applicant asks us to strike out the Record of Appeal for being “fatally and incurably defective”. The grounds upon which this motion is brought are that there is no valid order appealed against, that the decree and the memorandum of appeal are at variance.
We have perused the record of appeal filed herein but the grounds set out in the motion are clearly baseless. In our view, this is a frivolous application which ought not to have been filed.
In view of the foregoing, we order that the notice of motion dated 15th September, 2004 and filed in this Court on 4th October, 2004 be and is hereby dismissed. Costs of the motion shall be in the appeal.
Dated and delivered at Kisumu this 24th day of June, 2005.
R. S. C. OMOLO
…………………………………
JUDGE OF APPEAL
E. O. O’KUBASU
……………………………….
JUDGE OF APPEAL
E. M. GITHINJI
……………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR