[2001] KECA 348 (KLR)
The Court found that the respondent had lost interest in the intended appeal, as evidenced by the lack of communication and inaction for over a year since the notice of appeal was lodged. The advocates for the respondent confirmed their inability to reach their client. The Court held that it would be unfair and...
Source-derived case information.
- Citation
- [2001] KECA 348 (KLR)
- Parties
- Applicant: Victor Caetano D'Souza; Applicant: Camilla Frances D'Souza; Applicant: Prithpal Singh Chada; Applicant: Harbans Kaur Chada (as Executrix of the estate of Jagjit Singh Chada (Deceased)); Applicant: Harbans Kaur Chada; Applicant: Santokh Singh Chada; Applicant: Parminder Singh Chada; Applicant: Manmohan Kaur Chada; Applicant: Kanwaljit Singh Chada; Applicant: Hardev Singh Dhanda; Applicant: Parsin Kaur; Respondent: Saki Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 237 of 2001
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs to applicants
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Caetano D'Souza
Applicant
Camilla Frances D'Souza
Applicant
Prithpal Singh Chada
Applicant
Harbans Kaur Chada (as Executrix of the estate of Jagjit Singh Chada (Deceased))
Applicant
Harbans Kaur Chada
Applicant
Santokh Singh Chada
Applicant
Parminder Singh Chada
Applicant
Manmohan Kaur Chada
Applicant
Kanwaljit Singh Chada
Applicant
Hardev Singh Dhanda
Applicant
Parsin Kaur
Applicant
Saki Limited
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out due to inordinate delay and lack of prosecution by the respondent.
- 2 Whether it is unfair to keep the notice of appeal pending indefinitely to the prejudice of the applicants.
Ratio Decidendi
The Court found that the respondent had lost interest in the intended appeal, as evidenced by the lack of communication and inaction for over a year since the notice of appeal was lodged. The advocates for the respondent confirmed their inability to reach their client. The Court held that it would be unfair and prejudicial to the applicants to allow the notice of appeal to remain pending indefinitely. Accordingly, the Court exercised its discretion to strike out the notice of appeal and awarded costs to the applicants.
Court Disposition
application allowed; notice of appeal struck out with costs to applicants
Orders
- The respondent's notice of appeal filed on 24th May, 2000, is struck out.
- Costs of the application awarded to the applicants.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, TUNOI & KEIWUA, JJ.A. CIVIL APPLICATION NO. NAI 237 OF 2001
BETWEEN
VICTOR CAETANO D'SOUZA CAMILLA FRANCES D'SOUZA PRITHPAL SINGH CHADA HARBANS KAUR CHADA (as Executrix of the estate of JAGJIT SINGH CHADA (DECEASED) HARBANS KAUR CHADA SANTOKH SINGH CHADA PARMINDER SINGH CHADA MANMOHAN KAUR CHADA KANWALJIT SINGH CHADA HARDEV SINGH DHANDA PARSIN KAUR ................................................................................................................... APPLICANTS
AND
SAKI LIMITED ................................................................................................................. RESPONDENT
(Application to strike out a notice of appeal in an intended appeal from a ruling of the High Court of Kenya at Nairobi (O'Kubasu JA) dated 12th May, 2000
in
H.C.C.C. NO. 4503 OF 19 *******
RULING OF THE COURT
It appears from what is stated in the replying affidavit of Mr Murugara that the respondent to this application has lost interest in the intended appeal. The notice of appeal was lodged in Court on 24th May, 2000. That is well over one year and since then nothing has been heard from the respondent. Its advocates are unable to communicate with the respondent and in the circumstances it would be unfair to the applicants to keep the notice of appeal pending indefinitely. We allow the applicants' notice of motion dated 10th July, 2001, and order that the respondent's notice of appeal filed in the Court on 24th May, 2000, be and is hereby struck out with the costs thereof to the applicants.
Dated and delivered at Nairobi this 20th day of December, 2001.
R. S. C. OMOLO
----------------------------
JUDGE OF APPEAL
P. K. TUNOI
---------------------------
JUDGE OF APPEAL
M. Ole KEIWUA
--------------------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR