[2002] KECA 273 (KLR)
The Court held that the respondent's failure to apply for proceedings within thirty days from the date of the High Court decision precluded it from relying on the proviso to rule 87(1) of the Court of Appeal Rules. Without a timely application for proceedings, the respondent could not obtain a certificate of delay,...
Source-derived case information.
- Citation
- [2002] KECA 273 (KLR)
- Parties
- Applicant: Trust Bank Limited; Respondent: KICOMI (1993) Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 297 of 2000
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs to applicant
- Judges
- E Owuor, EO O'Kubasu
- Legal Topics
- Notice of Appeal, Certificate of Delay, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Trust Bank Limited
Applicant
KICOMI (1993) Limited
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondent's notice of appeal should be struck out for failure to apply for proceedings within the prescribed time period.
- 2 Whether the respondent can rely on the proviso to rule 87(1) of the Court of Appeal Rules in the absence of a timely application for proceedings.
Ratio Decidendi
The Court held that the respondent's failure to apply for proceedings within thirty days from the date of the High Court decision precluded it from relying on the proviso to rule 87(1) of the Court of Appeal Rules. Without a timely application for proceedings, the respondent could not obtain a certificate of delay, making it impossible to justify the delay in filing the appeal. The Court found no valid reason to keep the application pending and determined that the notice of appeal lodged by the respondent was defective and should be struck out. Accordingly, the application to strike out the notice of appeal was allowed with costs to the applicant.
Court Disposition
application allowed; notice of appeal struck out with costs to applicant
Orders
- The notice of appeal lodged in this Court on 15th May, 2000 is struck out with costs to the applicant.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, OWUOR & O'KUBASU, JJ.A.)
CIVIL APPLICATION NO. NAI. 297 OF 2000
BETWEEN
TRUST BANK LIMITED ............................................................................ APPLICANT
AND
KICOMI (1993) LIMITED .................................................................... RESPONDENT
(Application to strike out the notice of appeal lodged by the respondent on 15th
May, 2000 in an intended appeal from the judgment of the High Court of
Kenya at Nairobi (Mbaluto, J.) dated 7th March, 2000
in
H.C.C.C. NO. 966 OF 1999)
***************
RULING OF THE COURT:
While we sympathise with and appreciate the predicament in which Mrs. Arwa finds herself, we do not think that it is right that this application be kept pending endlessly. Even if Mr. K'Owade himself had been here, we do not see what he could have said against the matters on which Mr. Kiragu has submitted . There is no denying the fact that the respondent applied for proceedings well outside thirty days from the date on which the decision sought to be challenged on appeal was made. That alone would deprive the respondent of any possibility of relying on the proviso to rule 87 (1) of the Court's rules and if the respondent cannot obtain a certificate of delay it will be well night impossible to explain the delay from the date of the decision to the present time.
It is noteworthy that though the motion before us was lodged on 25th October, 2000, the respondent has not been able to do anything about its intended appeal. We allow this motion and order that the notice of appeal lodged in this Court on 15th May, 2000 be and is hereby struck out with costs to the applicant.
Dated at Nairobi this 31st day of January, 2002.
R. S. C. OMOLO
......................................
JUDGE OF APPEAL
E. OWUOR
.....................................
JUDGE OF APPEAL
E. O. O'KUBASU....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR