Case Metadata |
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| Case Number: | Civil Appeal 287 of 2004 |
|---|---|
| Parties: | MJAHID SUO & RICHARD BAYA v JOSEPH KASHURU & MOHAMED MWENZAGU |
| Date Delivered: | 21 Jul 2006 |
| Case Class: | Civil |
| Court: | Court of Appeal at Mombasa |
| Case Action: | |
| Judge(s): | Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire |
| Citation: | MJAHID SUO & another v JOSEPH KASHURU & another [2006] eKLR |
| Advocates: | Mr. Odongo for the Applicant. |
| Case History: | (Appeal from the ruling and order of the High Court of Kenya at Malindi (Ouko J.) dated the 23rd of September, 2004 in H.C.C.C. NO.51 OF 2002 |
| Advocates: | Mr. Odongo for the Applicant. |
| Case Summary: | [Ruling] Civil Practice and Procedure - leave to appeal - appeal against a decision of the High Court striking out a plaint - whether such striking out conclusively determined the rights of the parties with regard to the matters in controversy - whether leave of the High Court was needed to appeal against the decision to the Court of Appeal - notice of appeal filed one day out of time without leave of the Court - respondents failing to answer that point - whether the notice of appeal and record of appeal should be struck out - Civil Procedure Rules Order 42 rule 3 |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
Civil Appeal 287 of 2004
MJAHID SUO
RICHARD BAYA ……………..............................................…………………………. APPELLANTS
AND
JOSEPH KASHURU
MOHAMED MWENZAGU ……………...............................................……………. RESPONDENTS
(Appeal from the ruling and order of the High Court of Kenya at Malindi (Ouko J.) dated the 23rd of September, 2004
in
H.C.C.C. NO.51 OF 2002
***********
RULING OF THE COURT
We do not agree with Mr. Odongo, learned counsel for the applicant, that the respondents to the motion needed leave of the superior court to enable them appeal to this court. The plaint was struck out and as far as the superior court was concerned, the striking out of the plaint conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit – see Order 42 Rule 3, Civil Procedure Rules. So we cannot strike out the appeal on that basis. But Mr. Odongo also relies on the fact that the notice of appeal was itself filed one day late and there was no leave either of the superior court or of this Court to do so. That point is unanswerable and it does not matter that the delay involved was only one day. The respondents to the motion were served with a notice for to-day’s hearing. Neither the respondents nor their counsel is here to contest this point. Accordingly we allow the applicants notice of motion dated and lodged in this Court on 21st December, 2004 and order that the notice of appeal dated and lodged in court on 8th October 2004 and the record of appeal lodged on 2nd December 2004 be and are hereby struck out with costs to the appeal and application applicants.
Dated and delivered at Mombasa this 21st day of July, 2006.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P.K. TUNOI
…………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.DEPUTY REGISTRAR
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