[2002] KECA 242 (KLR)
The court found that in the absence of any evidence that the respondents had sent a letter requesting for proceedings from the registry and copied it to the applicant, the time for filing the intended appeal had expired. Therefore, the respondents could not take advantage of the proviso to Rule 81(2) of the Court of...
Source-derived case information.
- Citation
- [2002] KECA 242 (KLR)
- Parties
- Applicant: Shirley Luckhurst; Respondent: K.H. Osmond Advocate; Respondent: S.M. Mwenesi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 254 of 2001
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out with costs to the applicant.
- Legal Topics
- Notice of Appeal, Time Limits, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shirley Luckhurst
Applicant
K.H. Osmond Advocate
Respondent
S.M. Mwenesi
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of appeal should be struck out for being filed out of time.
- 2 Whether the respondents can rely on the proviso to Rule 81(2) in the absence of evidence of a letter requesting proceedings.
Ratio Decidendi
The court found that in the absence of any evidence that the respondents had sent a letter requesting for proceedings from the registry and copied it to the applicant, the time for filing the intended appeal had expired. Therefore, the respondents could not take advantage of the proviso to Rule 81(2) of the Court of Appeal Rules, and the Notice of appeal was struck out with costs to the applicant.
Court Disposition
Notice of appeal struck out with costs to the applicant.
Orders
- The Notice of appeal filed on 24th May, 2000 is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, OWUOR & O'KUBASU, JJ.A)
CIVIL APPLICATION NO. NAI. 254 OF 2001
BETWEEN
SHIRLEY LUCKHURST ................................................... APPLICANT
AND
K.H. OSMOND ADVOCATE .............................. 1ST RESPONDENT
S.M. MWENESI .................................................. 2ND RESPONDENT
(Application to strike out a Notice of appeal in an intended appeal from the Ruling of the High Court of Kenya at Nairobi(Mr. Justice Githinji) dated 17th May, 2000
in
H.C.C.C NO. 3012 OF 1997 (O.S) ***************
RULING OF THE COURT
The application before us is for striking out the Notice of appeal filed herein on 24th May, 2000 on the ground that the time for filing the intended appeal has expired. We are satisfied and in the absence of any evidence that the alleged letter requesting for the proceedings from the registry was indeed received and copied to the applicant, the time has expired and the respondents cannot take advantage of the proviso to Rule 81(2). In that regard, the Notice of appeal is hereby struck out with costs to the applicant.
Dated and delivered at Nairobi this 28th day of May, 2002.
A. A. LAKH ............... JUDGE OF APPEAL
E. OWUOR .............. JUDGE OF APPEAL
E. O. O'KUBASU ...............
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR