[2021] KECA 838 (KLR)
The Court found that the intended appellants failed to comply with the mandatory timelines stipulated in the Court of Appeal Rules. Specifically, the notice of appeal was filed 16 days after the judgment, exceeding the 14-day limit under Rule 75, and was served 48 days after filing, contrary to the 7-day requirement...
Source-derived case information.
- Citation
- [2021] KECA 838 (KLR)
- Parties
- Applicant: Simbiri Nan-Bell Community Health Centre Limited; Respondent: Erick Odede; Respondent: Elijah Miruka; Respondent: Spencer Otieno; Respondent: Thomas Oluoch Nyakado; Respondent: Equity Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 59 of 2020
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Application allowed. Notice of appeal struck out. Costs awarded to the applicant.
- Judges
- GG Okwengu, DK Musinga, F Sichale
- Legal Topics
- Notice of Appeal, Court of Appeal Rules, Time Limits, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simbiri Nan-Bell Community Health Centre Limited
Applicant
Erick Odede
Respondent
Elijah Miruka
Respondent
Spencer Otieno
Respondent
Thomas Oluoch Nyakado
Respondent
Equity Bank Limited
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was lodged within the prescribed time under Rule 75 of the Court of Appeal Rules.
- 2 Whether the notice of appeal was served within the prescribed time under Rule 77 of the Court of Appeal Rules.
- 3 Whether failure to comply with the prescribed timelines warrants striking out the notice of appeal under Rule 84 of the Court of Appeal Rules.
Ratio Decidendi
The Court found that the intended appellants failed to comply with the mandatory timelines stipulated in the Court of Appeal Rules. Specifically, the notice of appeal was filed 16 days after the judgment, exceeding the 14-day limit under Rule 75, and was served 48 days after filing, contrary to the 7-day requirement under Rule 77. The Court held that these failures amounted to non-compliance with essential procedural steps. Under Rule 84, such non-compliance empowers the Court to strike out the notice of appeal. As there was no explanation or opposition from the respondents, the Court exercised its discretion to allow the applicant’s motion and struck out the notice of appeal, awarding...
Court Disposition
Application allowed. Notice of appeal struck out. Costs awarded to the applicant.
Orders
- The notice of appeal dated 25th March, 2020 is struck out.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OKWENGU, MUSINGA & SICHALE, JJ.A.)
CIVIL APPLICATION NO. 59 OF 2020
BETWEEN
SIMBIRI NAN-BELL COMMUNITY
HEALTH CENTRE LIMITED ...............................................APPLICANT
AND
ERICK ODEDE...............................................................1STRESPONDENT
ELIJAH MIRUKA........................................................ 2NDRESPONDENT
SPENCER OTIENO ......................................................3RDRESPONDENT
THOMAS OLUOCH NYAKADO.................................4THRESPONDENT
EQUITY BANK LIMITED...........................................5THRESPONDENT
(Application to strike out the notice of appeal lodged by the appellant in respect of the ruling and order of the Environment and Land Court at Migori (Ongondo, J.) dated 12thMarch, 2020
in
MIGORI ELC APPEAL NO. 12 OF 2019)
**************************
RULING OF THE COURT
[1] By a notice of motion dated 5th June, 2020 the applicant, who is the respondent in the intended appeal, seeks to have the notice of appeal dated 25th March, 2020 which was lodged by the 1st to 4th respondents struck out.
[2] Pursuant to the Covid-19 Practice Directions, the hearing of the appeal proceeded by way of written submissions followinghearing notices served on the respective parties.
[3] The intended appeal is against the ruling of the ELC Court dated 12th March, 2020 in which the learned judge upheld a preliminary objection that was lodged by the applicant. The notice of appeal was lodged on 26th March, 2020 and served on the applicant on 14th May, 2020. Although duly served with a hearing notice, the respondents have not filed any written submissions or reply to the applicant’s motion.
[4] Under Rule 75 of the Court of Appeal Rules, a notice of appeal is required to be lodged within 14 days of the date of the decision against which it is desired to appeal and under Rule 77 of the Court of Appeal Rules, the notice of appeal is required to be served against all persons directly affected by the appeal within 7 days after lodging of the notice.
[5] It is evident that the intended appellants did not comply with Rule 75 or Rule 77 of the Court Rules, as the notice of appeal was filed 16 days after the judgment was delivered and served on the intended respondent about 48 days after the notice was filed. Under Rule 84 of the Court Rules this Court has powers to strike out the notice of appeal or the appeal, where some essential step has not been taken or has not been taken within the prescribed time. It is clear that the notice of appeal was neither filed nor served within time.
[6] In the circumstances, we allow the applicant’s motion, and strike out the notice of appeal. We award costs to the applicant.
Dated and Delivered at Nairobi this 19thday of March, 2021.
HANNAH OKWENGU
……………………….
JUDGE OF APPEAL
D. K. MUSINGA
……………………….
JUDGE OF APPEAL
F. SICHALE
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR