[2002] KECA 169 (KLR)
The Court found that the respondent failed to file the appeal within the prescribed time after lodging the notice of appeal. There was no evidence of an application for copies of proceedings under rule 81, nor was there any exhibited application for extension of time under rule 4. The Court was not persuaded by the...
Source-derived case information.
- Citation
- [2002] KECA 169 (KLR)
- Parties
- Applicant: Victoria K. Wills; Respondent: Burkhard Koartis
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 372 of 2001
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs
- Legal Topics
- Notice of Appeal, Striking Out Applications, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victoria K. Wills
Applicant
Burkhard Koartis
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for failure to file the appeal within the prescribed time.
- 2 Whether there was a valid application for extension of time to file the appeal.
Ratio Decidendi
The Court found that the respondent failed to file the appeal within the prescribed time after lodging the notice of appeal. There was no evidence of an application for copies of proceedings under rule 81, nor was there any exhibited application for extension of time under rule 4. The Court was not persuaded by the respondent's assertion that an application for extension had been made, as no supporting documentation was provided. Consequently, the notice of appeal was struck out for non-compliance with the procedural requirements of the Court of Appeal Rules.
Court Disposition
application allowed; notice of appeal struck out with costs
Orders
- The notice of appeal filed on 14th September, 1999 is struck out.
- The applicant is awarded costs of the application, including costs of the motion.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: GICHERU, LAKHA & O'KUBASU, JJ.A.)
CIVIL APPLICATION NO. 372 OF 2001
BETWEEN
VICTORIA K. WILLS .................................. APPLICANT
AND
BURKHARD KOARTIS .................................. RESPONDENT
(Application to strike out a notice of appeal in an
intended appeal from the judgment and decree of the
High Court of Kenya at Mombasa (Waki, J.) made on
3rd September, 1999
in
H.C.C.C. NO. 579 OF 1993)
*******************
RULING OF THE COURT
We have before us an application to strike out a notice of appeal filed on 14th September, 1999 as no appeal has been filed within the prescribed time. There is no application for copies of proceedings under rule 81. Although it is said that an application for an extension has been made under rule 4, this is not exhibited. The intended appeal is against the judgment of the superior court delivered on 3rd September, 1999. We are not persuaded that there is any reason why the notice of appeal should not be struck out.
The notice of motion dated 22nd June, 2001 succeeds. The notice of appeal filed on 14th September, 1999 is struck out with costs including the costs of the motion.
Dated and delivered at Mombasa this 25th day of January, 2002.
J. E. GICHERU
...............
JUDGE OF APPEAL
A. A. LAKHA
...............
JUDGE OF APPEAL
E. O'KUBASU
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR