[2017] KEELC 1815 (KLR)
The Environment and Land Court lacks jurisdiction to entertain an application to strike out a notice of appeal under Rule 84 of the Court of Appeal Rules. The rules clearly define 'court' as the Court of Appeal or its divisions, and not the Environment and Land Court. Therefore, any application seeking to strike out...
Source-derived case information.
- Citation
- [2017] KEELC 1815 (KLR)
- Parties
- Plaintiff: Shadrack Oltetia Ole Tome; Plaintiff: Tabitha Mateyian Tome; Defendant: The Honourable Attorney General; Defendant: Fredrick Olonana Tome; Defendant: Mrs Gerishom Ole Tome
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 457 of 2006
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Application dismissed for want of jurisdiction.
- Judges
- EO Obaga
- Legal Topics
- Jurisdiction of Court, Striking Out Notice of Appeal, Court of Appeal Rules, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Oltetia Ole Tome
Plaintiff
Tabitha Mateyian Tome
Plaintiff
The Honourable Attorney General
Defendant
Fredrick Olonana Tome
Defendant
Mrs Gerishom Ole Tome
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to strike out a notice of appeal under Rule 84 of the Court of Appeal Rules.
- 2 Whether the application to strike out the notice of appeal was filed in the proper court.
Ratio Decidendi
The Environment and Land Court lacks jurisdiction to entertain an application to strike out a notice of appeal under Rule 84 of the Court of Appeal Rules. The rules clearly define 'court' as the Court of Appeal or its divisions, and not the Environment and Land Court. Therefore, any application seeking to strike out a notice of appeal on grounds stipulated under the Court of Appeal Rules must be filed before the Court of Appeal. The applicant's motion was thus improperly before this court and could not be entertained.
Court Disposition
Application dismissed for want of jurisdiction.
Orders
- The application to strike out the notice of appeal is dismissed for want of jurisdiction.
- The applicant is advised to file the application in the proper court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 457 OF 2006
SHADRACK OLTETIA OLE TOME..............................................PLAINTIFF
TABITHA MATEYIAN TOME........................................................PLAINTIFF
= VS =
THE HONOURABLE ATTORNEY GENERAL..................1ST DEFENDANT
FREDRICK OLONANA TOME.........................................2ND DEFENDANT
MRS GERISHOM OLE TOME.........................................3RD DEFENDANT
RULING
1. This is a Ruling in respect of a Notice of Motion dated 15th June 2016. The application is expressed to be brought under Rule 84 and 85 of the Court of Appeal Rules. The application seeks to strike out a Notice of Appeal dated 12th June 2015, and filed in Court on 16thJune 2015.
2. Rule 84 of the Court of Appeal Rules provides as follows:-
“ A person affected by an appeal may at any time either before or after the institution of the appeal ,apply to the court to strike out the notice or the appeal as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time”.
3. Under the Court of Appeal Rules 2010,”Court”means the Court of Appeal and includes a division thereof and a single Judge exercising any power vested in him sitting alone. It is therefore clear that this Court does not have jurisdiction to entertain an application for striking out a notice of appeal on any grounds stipulated under the rules of that court. The applicant should accordingly file the application in the proper court.
It is so ordered.
Dated, Signed and delivered at Nairobion this 21stday of September, 2017.
E. O. OBAGA
JUDGE
In the presence of :
Shadrack Ole Tome, the first Plaintiff
Court Assistant: Hilda
E. O. OBAGA
JUDGE