[2007] KECA 326 (KLR)
The Court held that since the respondent had applied for the proceedings and served a copy of the letter requesting the proceedings on the applicants, the time for lodging the record of appeal had not yet started running. Therefore, the application to strike out the Notice of Appeal was premature and could not...
Source-derived case information.
- Citation
- [2007] KECA 326 (KLR)
- Parties
- Applicant: Simon Ndungu; Applicant: Joseph Waweru; Respondent: Kangathia Kiuna
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 319 of 2006
- Procedural Posture
- Application to Strike Out Notice of Appeal / Ruling
- Outcome
- application dismissed
- Legal Topics
- Notice of Appeal, Record of Appeal, Court of Appeal Rules, Timelines for Appeal, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ndungu
Applicant
Joseph Waweru
Applicant
Kangathia Kiuna
Respondent
Procedural Posture
Application to Strike Out Notice of Appeal / Ruling
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for failure to lodge the record of appeal within the stipulated time.
- 2 Whether the application to strike out the Notice of Appeal was premature under the relevant Court of Appeal Rules.
Ratio Decidendi
The Court held that since the respondent had applied for the proceedings and served a copy of the letter requesting the proceedings on the applicants, the time for lodging the record of appeal had not yet started running. Therefore, the application to strike out the Notice of Appeal was premature and could not succeed. The application was dismissed as the procedural requirements under the Court of Appeal Rules had not been exhausted.
Court Disposition
application dismissed
Orders
- The application to strike out the Notice of Appeal is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL OF KENYA AT NYERI
Civil Appli 319 of 2006 (NYR.15/06)
SIMON NDUNGU ………………...….………….……….. 1ST APPLICANT
JOSEPH WAWERU ……………....…………………….. 2ND APPLICANT
AND
KANGATHIA KIUNA ……………..………....…………..… RESPONDENT
(Application to strike out Notice of Appeal in an intended appeal from the ruling of the High Court of Kenya Nyeri (Okwengu, J.) dated 19th July, 2005 in H.C.MISC.APPLICATION NO. 191 OF 1999)
***************************
RULING OF THE COURT
By this application expressed to be brought under rule 80 of the Rules of this Court, the applicants seek orders that the Notice of Appeal filed in H.C.Miscl.Civil Application No. 191 of 1999 (Nyeri) on 25th July, 2005 be struck out on the ground that no record of appeal has been lodged within the time stipulated by the Rules.
It is common ground that the respondent applied for the copies of the proceedings on 21st July, 2005 but to date the proceedings have not been received. The applicants have themselves confirmedthat they received the copy of the letter bespeaking of the proceedings. In the circumstances the application now before us, is premature and ought not to have been instituted in the first place as time has not been exhausted within the meaning of rule 81(1) of the Rules.
In the result, this application fails and is dismissed. However, as the applicants are unrepresented and were genuinely interested in seeing that the intended appeal is disposed of expeditiously, there shall be no order as to costs.
Dated and delivered at Nyeri this 11th day of May, 2007.
P.K. TUNOI
………………………..
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………….
JUDGE OF APPEAL
W.S. DEVERELL
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR