[2010] KECA 64 (KLR)
The Court held that the order of 11th November, 2009 was not complete until sentences were imposed on 16th December, 2009, making it appropriate for the respondents to file a single notice of appeal after the final order. The Court found it artificial to require separate notices for the two orders, as they were part...
Source-derived case information.
- Citation
- [2010] KECA 64 (KLR)
- Parties
- Applicant: Trans-Nzoia Investment Company Limited; Respondent: Joseph Wanambisi; Respondent: Alfred Wanambisi; Respondent: Wekesa Waminila; Respondent: Sammy Wanjala; Respondent: Ibrahim Ongaro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 79 of 2010
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Appeals Process, Notice of Appeal, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans-Nzoia Investment Company Limited
Applicant
Joseph Wanambisi
Respondent
Alfred Wanambisi
Respondent
Wekesa Waminila
Respondent
Sammy Wanjala
Respondent
Ibrahim Ongaro
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the notice of appeal and record of appeal should be struck out for failure to file separate notices for two related orders.
- 2 Whether filing a single notice of appeal against both orders constituted a curable procedural irregularity.
Ratio Decidendi
The Court held that the order of 11th November, 2009 was not complete until sentences were imposed on 16th December, 2009, making it appropriate for the respondents to file a single notice of appeal after the final order. The Court found it artificial to require separate notices for the two orders, as they were part of a single continuum of proceedings. Even if there was a procedural irregularity in filing a single notice, such irregularity was curable under sections 3A and 3B of the Appellate Jurisdiction Act, which introduced the overriding objective of litigation. Striking out the record of appeal would be contrary to these provisions, as it would unnecessarily prolong litigation and...
Court Disposition
application dismissed
Orders
- The applicant's motion dated 11th May, 2010 is dismissed.
- The costs of the dismissed motion shall be to the respondents in any event.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CIVIL APPEAL (APPLICATION) 79 OF 2010
BETWEEN
TRANS-NZOIA INVESTMENT
COMPANY LIMITED ………………………..... APPLICANT/RESPONDENT
AND
JOSEPH WANAMBISI …………………………………. 1ST RESPONDENT
ALFRED WANAMBISI …………………………………. 2ND RESPONDENT
WEKESA WAMINILA ………………………………….. 3RD RESPONDENT
SAMMY WANJALA …………………………………….. 4TH RESPONDENT
IBRAHIM ONGARO …………………………………….. 5TH RESPONDENT
(Being an application to strike out record of appeal from the ruling and order of the High Court of Kenya at Kitale (Ombija, J) dated 11th November, 2009 and 16th December, 2009
In
H.C. C. Suit No. 59 of 2005)
*****************************
RULING OF THE COURT
We think there is no merit in the motion before us filed by Trans-Nzoia Investment Company, the applicant hereinafter, asking us to strike out the notice of appeal and the record of appeal filed by Joseph Wanambisi and four other named persons, hereinafter the respondents. On 11th November, 2009, Ombija, J found the five respondents guilty of contempt of court and convicted them. On 16th December, 2009, the learned Judge ordered that each respondent was to pay a fine of Kshs.5000/- or in default be imprisoned for a term of six months. The respondents filed a notice of appeal against both orders on 17th December 2009, one day after the last order made on 16th December, 2009. Mr. Kiarie, learned counsel for the applicant, told us that two notices of appeal ought to have been filed, one against the order of 11th November, 2009 which should have been filed by 25th November, 2009 and a second notice against the order of 16th December, 2009.
The order of 11th November, 2009 was not complete; it was in fact perfected and completed on 16th December, 2009 when the learned Judge imposed sentences upon the respondents. It would be wholly artificial to separate the two orders in the manner Mr. Kiarie asked us to do and then strike out the record of appeal on that basis. Even if there was any irregularity in filing a single notice of appeal such an irregularity is now curable under and in accordance with the provisions of sections 3A and 3Bof the Appellant Jurisdiction Act which have introduced the concept of over-riding objective of litigation in our courts and it would clearly be contrary to the letter and spirit of the two sections to strike out the record of appeal so that the respondents to the motion can start all-over again. That would only increase the time taken by the litigation and costs thereof. We reject the applicant’s motion dated and lodged in the Court on 11th May, 2010 and order that it be and is hereby dismissed. The costs of the dismissed motion shall be to the respondents in any event. Those are the orders of the Court.
Dated and delivered at Eldoret this 12th day of November, 2010.
R.S.C. OMOLO
…………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………
JUDGE OF APPEAL
ALNASHIR VISRAM
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.