Case Metadata |
|
Case Number: | civil appl no.nai.180 of 98 |
---|---|
Parties: | DAVID KAHIRA MUNGAI vs GRACE WAIRIMU MWANGI |
Date Delivered: | 22 Sep 1998 |
Case Class: | Civil |
Court: | Court of Appeal at Nakuru |
Case Action: | |
Judge(s): | Gurbachan Singh Pall, Effie Owuor, Richard Otieno Kwach |
Citation: | DAVID KAHIRA MUNGAI vs GRACE WAIRIMU MWANGI[1998]eKLR |
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
AT NAKURU
(Coram: Kwach, Pall & Owuor, JJ.A.)
CIVIL APPLICATION NO. NAI. 180 OF 1998
BETWEEN
DAVID KAHIRA
MUNGAI..................................APPLICANT
AND
GRACE WAIRIMU
MWANGI.................................RESPONDENT
(Application to strike out the Notice of Appeal in an
intended appeal from the decision of the High Court of
Kenya
at Nakuru (Lady Justice Nambuye)
in
H.C.C.C. NO. 2 OF 1989)
*************************
RULING OF THE COURT
Paragraph 4 of the advocate for the applicant's affidavit in support of the motion says that he was served with the notice of appeal on 31st May, 1994. That means that the notice of appeal was served outside the period of seven days. It is true that this particular matter was not made a ground for the striking out the notice of appeal.
Service of notice in accordance with rule 76 within a period not exceeding seven days is a mandatory provision. Mr. Kagucia asks for an adjournment to enable him to file an affidavit in reply on this point but it would not help the matter.At the back of the notice of appeal the date of receipt is stated as 31st May, 1994 whereas the notice was filed on 18th May, 1994. This is a fundamental mistake. On the evidence before us we are satisfied that the notice was not served in accordance with rule 76. That makes a notice of appeal incompetent and we strike it out with no order as to costs.
Made and delivered at Nakuru this 22nd day of September, 1998.
R.O. KWACH
JUDGE OF APPEAL
G.S. PALL
JUDGE OF APPEAL
E. OWUOR
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR