[2008] KECA 288 (KLR)
The Court found that Civil Appeal No. 230 of 2007 was filed out of time and without the necessary leave of the court. The respondents, through their counsel, did not oppose the application to strike out the appeal, having conceded that the appeal was indeed filed out of time. The Court held that compliance with...
Source-derived case information.
- Citation
- [2008] KECA 288 (KLR)
- Parties
- Applicant: Stanley K. Chebiator; Respondent: Lucas Changwony; Respondent: Nicholas Komen; Respondent: James Changwony; Respondent: Joseph Chepkoiya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 230 of 2007
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Application allowed; appeal struck out with costs to the applicant/respondent.
- Legal Topics
- Appeal Out of Time, Leave of Court, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley K. Chebiator
Applicant
Lucas Changwony
Respondent
Nicholas Komen
Respondent
James Changwony
Respondent
Joseph Chepkoiya
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether Civil Appeal No. 230 of 2007 was filed out of time without leave of the court.
- 2 Whether the appeal should be struck out for being incompetent.
Ratio Decidendi
The Court found that Civil Appeal No. 230 of 2007 was filed out of time and without the necessary leave of the court. The respondents, through their counsel, did not oppose the application to strike out the appeal, having conceded that the appeal was indeed filed out of time. The Court held that compliance with procedural timelines is mandatory and that failure to obtain leave before filing an out-of-time appeal renders the appeal incompetent. Consequently, the Court allowed the application and struck out the appeal, awarding costs to the applicant/respondent.
Court Disposition
Application allowed; appeal struck out with costs to the applicant/respondent.
Orders
- Civil Appeal No. 230 of 2007 is struck out.
- Costs of the application and the appeal are awarded to the applicant/respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT ELDORET
Civil Appeal (Appli) 230 of 2007
STANLEYK. CHEBIATOR ……..……… APPLICANT/RESPONDENT
AND
1. LUCAS CHANGWONY
2. NICHOLAS KOMEN
3. JAMES CHANGWONY
4. JOSEPH CHEPKOIYA…………. RESPONDENTS/APPELLANTS
(Application to strike out Civil Appeal No. 230 of 2007 being an appeal from a ruling of the High Court of Kenya at Eldoret (Gacheche, J) dated 13th June, 2006
in
H.C. Civil Appeal No. 43 of 1996)
************************
RULING OF THE COURT
The motion dated 23rd October, 2007 seeks an order that Civil Appeal No. 230 of 2007 be struck out for, among other reasons, that it was filed out of time without leave. The applicant is Stanley K. Chebiator, the respondent in the appeal. Although the respondents had filed a replying affidavit opposing the application, their counsel on record, Mr. Gicheru, now says he has reconsidered the matter and does not wish to oppose the application, quite properly so, because clearly the record of appeal was filed out of time without leave.
In the circumstances, we allow the application and strike out the aforesaid appeal, with costs both of the application and the appeal to the applicant/respondent. It is so ordered.
Dated and delivered at Eldoret this 10th day of April, 2008.
S.E.O BOSIRE
………………………….
JUDGE OF APPEAL
E.O. O’KUBASU
…………………………
JUDGE OF APPEAL
W.S. DEVERELL
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR