[1998] KECA 106 (KLR)
The court found that the purported Notice of Appeal was not filed within the required 14-day period and did not meet the formal requirements of rule 74 of the Court of Appeal Rules. Additionally, the Record of Appeal was deficient as it did not contain a certified copy of the decree appealed against. Furthermore,...
Source-derived case information.
- Citation
- [1998] KECA 106 (KLR)
- Parties
- Applicant: Zedekiah Ogada; Respondent: Albert Ogutu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 221 of 1998
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal and Record of Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Judges
- RO Kwach, E Owuor
- Legal Topics
- Appeal Procedure, Notice of Appeal, Record of Appeal, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zedekiah Ogada
Applicant
Albert Ogutu
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal and Record of Appeal
Legal Issues
- 1 Whether the Notice of Appeal filed by the appellant complied with rule 74 of the Court of Appeal Rules.
- 2 Whether the Record of Appeal was properly constituted as required by the rules.
- 3 Whether the order appealed against was appealable without leave of the superior court.
Ratio Decidendi
The court found that the purported Notice of Appeal was not filed within the required 14-day period and did not meet the formal requirements of rule 74 of the Court of Appeal Rules. Additionally, the Record of Appeal was deficient as it did not contain a certified copy of the decree appealed against. Furthermore, the order appealed against was not appealable without leave of the superior court, which had not been obtained. These procedural defects rendered the appeal incompetent, warranting its striking out with costs to the respondent.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out with costs to the respondent assessed at KES 5,000.
- The respondent is awarded costs of the motion assessed at KES 1,000.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
CORAM: KWACH, TUNOI & OWUOR JJ.A
CIVIL APPLICATION NO. NAI. 221 OF 1998 (KSM.21/98)
BETWEEN
ZEDEKIAH OGADA.......................................APPLICANT
AND
ALBERT OGUTU.........................................RESPONDENT
(Application to strike out the Notice of Appeal and the entire Record of Appeal in an intended appeal from the Judgment and decree of the High Court of Kenya in Kisumu (Justice I.C.C. Wambilyangah) dated the 14th January, 1998 in H.C.C.C. NO. 33 OF 1996) *******************
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules to strike out Civil Appeal No. 189 of 1998 on several grounds.
The decision against which Zedekia Ogada, the appellant in the appeal, has appealed was given by Wambilyangah J, on 14. 1.98. By that decision the learned judge dismissed an application by the appellant for stay of execution. That application could only have been made under relevant provisions of Order 21 of the Civil Procedure Rules.
The appellant did not file a Notice of Appeal within 14 days as required by rule 74(2) of the Rules of this court.Instead he lodged a Record of Appeal on 13. 3.98 containing all sorts of documents including one at page 29 purporting to be a notice of appeal. We have looked at that document and we are satisfied it is not a Notice of Appeal within the meaning rule 74 of the Rules of this court. Nor does the record contain a certified copy of the decree appealed against. Last but not least the order appealed against is not appealable without leave of the superior court.
For all these reasons the appeal is incompetent and is struck out with costs to the respondent assessed at Shs.5,000/=. The respondent will also hear the costs of the motion assessed at Shs.1,000/=. The costs awarded to the respondent to be paid within sixty (60) days and in default execution to issue.
Dated and delivered at Kisumu this 25th day of November, 1998.
R. O. KWACH
JUDGE OF APPEAL
P. K. TUNOI
JUDGE OF APPEAL
E. OWUOR
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.