[2015] KECA 615 (KLR)
The Court found that although the Notice of Appeal had been pending for approximately ten years without a record of appeal being filed, the delay was satisfactorily explained by the respondent. The unavailability of the court file, as evidenced by correspondence from both parties and the eventual tracing of the file...
Source-derived case information.
- Citation
- [2015] KECA 615 (KLR)
- Parties
- Applicant: Stephen Kamunyu Ndwaru; Applicant: Esther Nyiha Ndwaru; Respondent: Florence Wambui Kungu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 7 of 2014
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- MA Warsame, F Sichale
- Legal Topics
- Appeals Process, Notice of Appeal, Record of Appeal, Delay in Filing, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kamunyu Ndwaru
Applicant
Esther Nyiha Ndwaru
Applicant
Florence Wambui Kungu
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for failure to file the record of appeal within a reasonable time.
- 2 Whether the delay in filing the record of appeal was excusable due to the unavailability of the court file.
Ratio Decidendi
The Court found that although the Notice of Appeal had been pending for approximately ten years without a record of appeal being filed, the delay was satisfactorily explained by the respondent. The unavailability of the court file, as evidenced by correspondence from both parties and the eventual tracing of the file in 2012, was deemed a circumstance beyond the respondent's control. The Court accepted that the respondent acted diligently by requesting proceedings promptly and that subsequent applications further delayed the process. Consequently, the Court held that the delay was excusable and dismissed the application to strike out the Notice of Appeal.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the Notice of Appeal is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: WARSAME, SICHALE & ODEK, JJ.A)
CIVIL APPLICATION NO. NAI. 7 OF 2014
BETWEEN
STEPHEN KAMUNYU NDWARU ………………… 1STAPPLICANT ESTHER NYIHA NDWARU ………………….. 2NDAPPLICANT
AND
FLORENCE WAMBUI KUNGU ……………… RESPONDENT
(Application to strike out the Notice of Appeal from the Ruling and Order of the High Court of Kenya at Nairobi delivered by (Koome,J.) given on the 5thAugust, 2005
in
HC. SUCCESSION CAUSE NO. 1131 OF 1991)
**************************
RULING OF THE COURT
The applicants STEPHEN KAMUYU NDWARU and ESTHER NYIHA NDWARUfiled a Notice of Motion application dated 16th January, 2014 seeking an order that the Notice of Appeal dated 8th August 2005 be struck out. The application was supported by the affidavit of DENNIS SILAS MBICHI MBOROKI, counsel for the applicants sworn on 16th January 2014, in which he deponed that the respondent filed a Notice of Appeal on 8th August 2015 following the ruling of Koome, J (as she then was) delivered on 5th August 2005; that to-date no record of appeal has been prepared and served upon the applicants and finally that the delay is inordinate.
In response, the respondent FLORENCE WAMBUI KUNGU swore an affidavit dated 4th July, 2014 wherein she attributed the failure to file the record of appeal to non-availability of the High Court file; that a letter bespeaking the proceedings was made on 8th August 2005, 3 days after the impugned ruling; that the letter from the applicant’s counsel addressed to the Deputy Registrar, dated 23rd November 2010 acknowledged that the court file was missing; that the file was eventually found in 2012; that thereafter several applications were made that caused the unavailability of the file and finally, that the delay to file the appeal was not due to negligence on her part.
We have considered the Notice of Motion application, the supporting affidavit and the respondent’s replying affidavit.
This is indeed an old matter, the Notice of Appeal having been filed on 8th August 2005, a period of now about 10 years. However, it is evident that the respondent has not been able to file the record of appeal due to unavailability of the file. We note that the respondent applied for proceedings vide a letter dated
8th August 2005, 3 days after the ruling of Koome, J. Her explanation of the missing file is given credence by the fact that the applicants counsel in a letter dated 23rd November 2010 asked the Deputy Registrar to “----- help us to trace the Court file.”
As deponed by the respondent the file was finally traced by the year 2012 and thereafter there were a multiplicity of applications made in respect of the parcel of land, the subject matter of the dispute. In particular, one Charles Mucheri Ikingafiled an application on 2nd March, 2012 and sought an order to have the Deputy Registrar execute a transfer in his favour. It would appear that this application was declined, necessitating a review application filed on 12th August 2013.
Given the above, we are of the considered view that the delay in filing the record of appeal has been caused by circumstances beyond the respondent’s control. The application to strike out the Notice of Appeal is dismissed with costs.
Dated and delivered at Nairobi this 19thday of June, 2015.
M. WARSAME
JUDGE OF APPEAL
F. SICHALE
JUDGE OF APPEAL
J. OTIENO-ODEK
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR