[2001] KECA 334 (KLR)
The court found that the application was fatally defective due to non-compliance with mandatory procedural requirements, specifically the failure to number the record as prescribed and the lack of a Commissioner of Oaths seal on the annextures to the supporting affidavit. These defects contravened Rule 13(5) of the...
Source-derived case information.
- Citation
- [2001] KECA 334 (KLR)
- Parties
- Applicant: Zecharia Ogamba Omarijoseph Obamba Atenga; Respondent: Otundo Mochache alias Otundu Nyaega
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 295 of ??
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- application struck out as defective
- Legal Topics
- Extension of Time, Court of Appeal Rules, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zecharia Ogamba Omarijoseph Obamba Atenga
Applicant
Otundo Mochache alias Otundu Nyaega
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant's application for extension of time to file a notice of appeal and record of appeal out of time is competent in light of procedural defects.
- 2 Whether failure to comply with Rule 13(5) of the Court of Appeal Rules and Rule 9 of the Statutory Declarations Act renders the application defective.
Ratio Decidendi
The court found that the application was fatally defective due to non-compliance with mandatory procedural requirements, specifically the failure to number the record as prescribed and the lack of a Commissioner of Oaths seal on the annextures to the supporting affidavit. These defects contravened Rule 13(5) of the Court of Appeal Rules and Rule 9 of the Rules made under section 6 of the Statutory Declarations Act. As a result, the application could not be entertained and was struck out with costs to the respondent.
Court Disposition
application struck out as defective
Orders
- The application is struck out with costs to the respondent assessed at 2,000/=
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: OWUOR, J.A. (IN CHAMBERS)CIVIL APPLICATION NO. NAI 295 OF 2000 (KSM/49/2000)
BETWEEN
ZECHARIA OGAMBA OMARIJOSEPH OBAMBA ATENGA ................................................ APPLICANTSANDOTUNDO MOCHACHE ALIAS OTUNDU NYAEGA .................. RESPONDENTR U L I N G
This is an application for extension of time for the applicant to file a notice of appeal and record of appeal out of time. As pointed out by counsel for the respondent and properly conceded by the applicant, the record on the face of it offends Rule 13 (5) of the 'Rules' in that the record is not numbered as prescribed at every 10th line. Further the annextures to the supporting affidavit are unnumbered nor do they bear a Commissioner of Oaths seal in terms of rule (9) of the Rules made under section (6) of the Statutory Declarations Act Cap. 15. On those grounds the application is defective the same is hereby struck out with costs to the respondent assessed at 2,000/=.Dated and delivered at Kisumu this 21st day of March, 2001. E. OWUOR...............JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR