[2005] KECA 172 (KLR)
The Court found that the respondents had not instituted an appeal within the prescribed time after filing the notice of appeal, nor had they sought an extension of time or obtained a certificate of delay. The mere act of requesting proceedings and judgment, without further steps, was insufficient to preserve the...
Source-derived case information.
- Citation
- [2005] KECA 172 (KLR)
- Parties
- Applicant: Zachariah Muhia Ng'ang'a; Respondent: Abdul Hussein Omar; Respondent: Stephen Mbuthia; Respondent: Pollmans Tours & Safaris; Respondent: Hussein Abdalla Ahmed
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 2005
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out
- Judges
- AM Githinji
- Legal Topics
- Notice of Appeal, Striking Out Applications, Appeal Timelines, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachariah Muhia Ng'ang'a
Applicant
Abdul Hussein Omar
Respondent
Stephen Mbuthia
Respondent
Pollmans Tours & Safaris
Respondent
Hussein Abdalla Ahmed
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 institute an appeal within the prescribed time.
- 2 Whether the absence of a certificate of delay or extension of time justifies striking out the notice of appeal.
Ratio Decidendi
The Court found that the respondents had not instituted an appeal within the prescribed time after filing the notice of appeal, nor had they sought an extension of time or obtained a certificate of delay. The mere act of requesting proceedings and judgment, without further steps, was insufficient to preserve the notice of appeal. Under rule 82 of the Court of Appeal Rules, the notice of appeal was deemed withdrawn. The Court therefore allowed the application and struck out the notice of appeal, awarding costs to the applicant.
Court Disposition
application allowed; notice of appeal struck out
Orders
- The Notice of Appeal dated 24th March, 2003 and lodged in Court on 25th March, 2003 is struck out.
- The applicant shall have the costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA CORAM: TUNOI, GITHINJI & DEVERELL, JJ.A. Civil Appli NAI 103 of 2005
BETWEEN
ZACHARIAH MUHIA NG’ANG’A ………… APPLICANT 1. ABDUL HUSSEIN OMAR ) 2. STEPHEN MBUTHIA ) 3. POLLMANS TOURS & SAFARIS) …..…RESPONDENTS 4. HUSSEIN ABDALLA AHMED )
(An application to strike out and dismiss a notice of appeal from the judgment and order of the High Court of Kenya at Mombasa (Hon. G.A. Omwitza & J. K. Sergon, J) dated 19th March, 2003
in H.C.C.C. NO. 591 OF 1995) *************
RULING OF THE COURT
By this application expressed to be brought under rules 80 and 82 of the Rules of the Court the applicant seeks to have an order to strike out the Notice of Appeal dated 24th March, 2003 and lodged in Court on the following day, 25th March, 2003.
It is manifestly clear and indeed not disputed by the respondents that no appeal has so far been instituted against the judgment complained of which was delivered by the superior court on the 19th March, 2003.
The only contention by the respondents as to why no appeal has been lodged within the prescribed time is that copies of proceedings and judgment have not been received. A letter bespeaking of the said copies dated 24th March, 2003 has been exhibited. As to what the respondents did thereafter is not clear.
No extension of time to lodge an intended appeal has been sought nor have the respondents obtained a Certificate of Delay from the Registrar. In the circumstances, the respondents cannot resist this application.
Moreover, under rule 82 the Notice of Appeal aforesaid is deemed to have been withdrawn the respondents having failed to institute an appeal within the appointed time.
This application succeeds and is accordingly allowed. The Notice of Appeal dated 24th March, 2003 and lodged in Court on 25th March, 2003 is hereby ordered struck out. The applicant shall have the costs of the application.
Dated and delivered at Mombasa this 29th day of July, 2005.
P. K. TUNOI
………………………..
JUDGE OF APPEAL
E. M. GITHINJI
………………………
JUDGE OF APPEAL
W. S. DEVERELL
………………………
JUDGE OF APPEAL
I certify that this a true
copy of the original.
DEPUTY REGISTRAR