[1997] KECA 237 (KLR)
The Court found that the respondents had taken all reasonable steps to obtain the proceedings necessary for the appeal, and that the delay in filing the record of appeal was due to the unavailability of the proceedings, which were missing until recently. The Court held that the respondents could not be faulted for...
Source-derived case information.
- Citation
- [1997] KECA 237 (KLR)
- Parties
- Applicant: William Juma; Applicant: Michael Odori; Respondent: Kenya Breweries Limited; Respondent: Njenga Kongo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 52 of 1997
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Appeal Process, Notice of Appeal, Record of Appeal, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Juma
Applicant
Michael Odori
Applicant
Kenya Breweries Limited
Respondent
Njenga Kongo
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondents failed to take an essential step in the appeal process by not filing the record of appeal in time.
- 2 Whether the notice of appeal should be struck out for failure to file the record of appeal.
Ratio Decidendi
The Court found that the respondents had taken all reasonable steps to obtain the proceedings necessary for the appeal, and that the delay in filing the record of appeal was due to the unavailability of the proceedings, which were missing until recently. The Court held that the respondents could not be faulted for the delay under these circumstances and therefore dismissed the application to strike out the notice of appeal.
Court Disposition
application dismissed
Orders
- The application to strike out the notice of appeal is dismissed.
- The respondents shall have the costs of this application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, AKIWUMI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI 52 OF 1997
BETWEEN
1. WILLIAM JUMA
2. MICHAEL ODORI .................................... APPLICANTS
AND
1. KENYA BREWERIES LIMITED
2. NJENGA KONGO ..................................... RESPONDENTS
(Application to strike out a Notice of Appeal filed on 22/6/1993 in an intended Appeal from a Judgment of the High Court of Kenya at Nairobi (Justice Githinji) dated 9th June, 1993 in H.C.C.C. NOS. 3514 AND 3515 OF 1985) ******************
RULING OF THE COURT
The present application is to strike out the respondent's notice of appeal on the ground that they have failed to take an essential step in the appeal process namely, to file the record of appeal in time. In support of this, the applicants in their affidavit in support of their application, referred to the letter of the respondents requesting copies of the proceedings and judgment dated 18th June, 1993, some nine days after judgment was delivered to show that that is all that the respondents had done upto now, to pursue the intended appeal.
The time position would seem to be otherwise. Since the delivery of the judgment, it is true that stay of extension has been obtained, but the respondents have done all that they could possibly do to obtain the proceedings which the applicants cannot deny, had "been permanently missing" until recently. We fear that the orders that commands itself to us is that the application be dismissed. The respondents will have their costs of this application.
Dated and delivered at Nairobi this 10th day of June, 1997.
R. O. KWACH
................
JUDGE OF APPEAL
A. M. AKIWUMI
................
JUDGE OF APPEAL
A. B. SHAH
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.