[2021] KECA 1054 (KLR)
The Court found that the respondent's notice of appeal was both filed and served out of time and without leave of the court, in violation of Rule 84 of the Court of Appeal Rules. Furthermore, the respondent failed to take any further steps to prosecute the intended appeal for nearly three years, demonstrating a lack...
Source-derived case information.
- Citation
- [2021] KECA 1054 (KLR)
- Parties
- Applicant: Unga Group Limited; Respondent: Jonathan M. Waiganjo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 89 of 2018
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs
- Judges
- J Karanja, DK Musinga
- Legal Topics
- Striking Out Notice of Appeal, Time Limits for Appeals, Non Compliance With Court Rules, Employment Termination Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unga Group Limited
Applicant
Jonathan M. Waiganjo
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was filed and served within the prescribed time under Rule 84 of the Court of Appeal Rules.
- 2 Whether the respondent took essential steps to prosecute the intended appeal.
- 3 Whether the application to strike out the notice of appeal was brought within the required time frame.
Ratio Decidendi
The Court found that the respondent's notice of appeal was both filed and served out of time and without leave of the court, in violation of Rule 84 of the Court of Appeal Rules. Furthermore, the respondent failed to take any further steps to prosecute the intended appeal for nearly three years, demonstrating a lack of interest in pursuing the matter. The applicant, on the other hand, complied with the procedural requirements by bringing the application to strike out within 30 days of service. The combination of procedural non-compliance and inaction by the respondent justified the striking out of the notice of appeal with costs to the applicant.
Court Disposition
application allowed; notice of appeal struck out with costs
Orders
- The notice of appeal dated 1/8/2018 and lodged on 2/8/2018 is struck out with costs to the applicant.
Full Case Text
Judgment text and source record
39 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: OUKO, (P), KARANJA & MUSINGA, JJ.A.)
CIVIL APPLICATION. NO. 89 OF 2018
BETWEEN
UNGA GROUP LIMITED.......................................................................................APPLICANT
AND
JONATHAN M. WAIGANJO..............................................................................RESPONDENT
(An application to strike out the Notice of Appeal dated 1/8/2018 and lodged on 2/8/2018
from the Judgment/Decree of the Employment & Labour Relations Court at Eldoret
(Hon. Justice M. Mbaru, J.) delivered on 12thJuly, 2018
in
ELRC Cause No. 231 of 2017)
**********************
RULING OF THE COURT
On 12th day of July, 2018, M. Mbaru, J. of the Employment and LabourRelations Court, finding no merit, dismissed the respondent’s claim against the applicant for wrongful termination of employment. The respondent was dissatisfied and evinced an intention to challenge on appeal that decision by lodging a notice of appeal on 2nd August, 2018 and serving it on the applicant on 30th August, 2018. To this day, the appeal has not been filed.
In the circumstances, and pursuant to, among other enabling provisions of the Court’s Rules, Rules 84, the applicant now seeks, in this application, that the notice of appeal be struck out with costs.
According to Rule 84, any person affected by an appeal may;
“ ..at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground 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.
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be”.
We need not explain this clear expression of judicial policy, that the courts have inherent jurisdiction to control proceedings before them, ensure that the court process is not improperly used and remove any obstacles that are likely to delay the just disposal of the case.
The respondent, who was duly served in accordance with the Court of Appeal Covid-19 Practice Note of 21st April, 2020, did not file any response to this application.
We are satisfied that, in the first place, the notice of appeal was filed and served out of time and without leave.
Secondly, it is nearly 3 years since the decision the respondent sought to challenge was made. After filing, out of time, a one-page notice of appeal, the respondent went to sleep. That is not how judicial business is transacted. The respondent clearly has lost interest in his pursuit for justice, to challenge before this Court the decision that had aggrieved him. We cannot help him.
The applicant has complied with the proviso to Rule 84, and brought this application within 30 days from the day it was served with the notice of appeal.
For these reasons, we allow the application and order that the notice of appeal be and is hereby struck out with costs.
Dated and delivered at Nairobi this 29thday of January, 2021.
W. OUKO, (P)
..................................
JUDGE OF APPEAL
W. KARANJA
...................................
JUDGE OF APPEAL
D.K. MUSINGA
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR