[2000] KECA 103 (KLR)
The Court held that Rule 80 of the Court of Appeal Rules does not permit an appellant to apply to strike out its own notice of appeal on the ground that it is defective for omitting the date of the decision. The grounds for striking out a notice of appeal under Rule 80 are limited to situations where no appeal lies...
Source-derived case information.
- Citation
- [2000] KECA 103 (KLR)
- Parties
- Applicant: South Nyanza Sugar Co. Ltd.; Respondent: Hesborn Onyuro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 171 of 2000
- Procedural Posture
- Civil Application / Application for Leave to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru, AM Akiwumi
- Legal Topics
- Notice of Appeal, Procedural Defects, Strike Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Co. Ltd.
Applicant
Hesborn Onyuro
Respondent
Procedural Posture
Civil Application / Application for Leave to Strike Out Notice of Appeal
Legal Issues
- 1 Whether an applicant can apply to strike out its own notice of appeal under Rule 80 of the Court of Appeal Rules.
- 2 Whether the omission of the date of the decision in the notice of appeal constitutes a ground for striking out under Rule 80.
- 3 Whether the applicant qualifies as a 'person affected by an appeal' within the meaning of Rule 80.
Ratio Decidendi
The Court held that Rule 80 of the Court of Appeal Rules does not permit an appellant to apply to strike out its own notice of appeal on the ground that it is defective for omitting the date of the decision. The grounds for striking out a notice of appeal under Rule 80 are limited to situations where no appeal lies or an essential procedural step has not been taken or has not been taken within the prescribed time, none of which were applicable in this case. Furthermore, the Court interpreted the term 'person affected by an appeal' as used in Rule 80 to exclude the appellant, limiting it to persons who may be made or become parties to the appeal other than the appellant. As such, the...
Court Disposition
application dismissed with costs
Orders
- The applicant's application is dismissed.
- Costs assessed at Kshs.3,000 to be paid within 30 days from the date of the ruling, failing which execution to issue.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU (CORAM: GICHERU, OMOLO & AKIWUMI, JJ.A.) CIVIL APPLICATION NO. NAI. 171 OF 2000 (KSM 32/00)
BETWEEN
SOUTH NYANZA SUGAR CO. LTD. ............................. APPLICANT
AND
HESBORN ONYURO .............................................. RESPONDENT
(An application for leave to strike out a defective Notice of Appeal from the Ruling and Order of the High Court of Kenya at Kisumu (Justice Wambilyangah) dated 11th april, 2000 in H.C.C.C. NO. 254 OF 1999) *********
RULING OF THE COURT
This unusual application, has been brought by the Appellant in an intended appeal, under Rule 80 of our Rules, to strike out the Notice of Appeal which it had filed and which it claims to be defective because it omits the date on which the decision intended to be appealed against, was delivered.
Rule 80 allows a person affected by an appeal, to apply to strike out a notice of appeal on the following grounds:
"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.".
None of those grounds have been urged in support of the application and neither can it be said that they apply. For this reason alone the application must be dismissed.
It was, however, argued on behalf of the Applicant that he is a "person affected by an appeal". But before we decide on this issue, it is necessary to consider Rule 76(1) of our Rules which lays the foundation to Rule 80 and which provides that an intendent appellant shall within a given period, serve copies of his notice of appeal on "all persons directly affected by the appeal". We are of the view that the phrase "a person affected by an appeal" as appears in Rule 80, must be interpreted within the context of the similar phrase employed in Rule 76(1), that is to say, those who may be made or become parties to an appeal, other than the appellant. To hold that this includes the appellant himself, would make nonsense of the two Rules.
There are avenues which the Applicant may properly exploit to achieve its intention of not going on with its present intended appeal. But the present application is not one of them.
In the result, the Applicant's application is dismissed with costs assessed at Kshs.3,000/- to be paid within 30 days from today otherwise, execution to issue.
Dated and delivered at Nairobi this 19th day of July, 2000.
J. E. GICHERU
..................
JUDGE OF APPEAL
R. S. C. OMOLO
..................
JUDGE OF APPEAL
A. M. AKIWUMI
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.