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|Case Number:||Civil Appeal (Application) 333 of 2010|
|Parties:||DISHON OCHIENG v SDA CHURCH, KODIAGA|
|Date Delivered:||22 Mar 2012|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Riaga Samuel Cornelius Omolo, Alnashir Ramazanali Magan Visram, Erastus Mwaniki Githinji|
|Citation:||DISHON OCHIENG v SDA CHURCH, KODIAGA  eKLR|
|Case History:||(An application to strike out Civil Appeal No 333 of 2010 from a judgment of the High Court of Kenya at Kisumu (Mwera, J) dated 6th March, 2008 in HCCC NO. 162 OF 2001)|
|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 HIGH COURT
MILIMANI LAW COURTS
Civil Appeal (Application) 333 of 2010
DISHON OCHIENG .................................. APPELLANT/RESPONDENT
SDA CHURCH, KODIAGA ....................... RESPONDENT/APPLICANT
(An application to strike out Civil Appeal No 333 of 2010 from a judgment of the High Court of Kenya at Kisumu (Mwera, J) dated 6th March, 2008
HCCC NO. 162 OF 2001)
RULING OF THE COURT
“(a) that the record of appeal filed herein was filed and served out of time contrary to the order granting the extension of time to do so.
(b) that the said notice does not indicate that the same was to be served on the 1st defendant in the High Court and there is no indication that he was ever served.”
There is no dispute that the record of appeal was filed three days late, without leave of the Court. By an order of the Court, (Visram, JA, sitting as a single Judge) made on 22nd November, 2010, the respondent was granted leave to file and serve the notice of appeal within seven days of the date of the order (22nd November, 2010) and the record of appeal within fourteen days thereafter. Indeed, the notice of appeal was filed and served within time but the record of appeal was not. It should have been filed and served by the 13th December, 2010, but was filed on 16th December, 2010 – three days late, and was served on 17th December, 2010 – four days late, without leave of the court further extending the time to do so.
These facts are not in dispute, and Mr B. O. Odeny, learned counsel for the respondent, while admitting the delay, simply relied on Section 159 of the Constitution, and Sections 3A and 3B of the Appellate Jurisdictions Act to cure the omission. We agree with Mr I. E. N. Okero, learned counsel for the applicant, that these provisions of the law would not help the respondent circumvent the Rules of the Court.
In the event, we allow the notice of motion dated 2nd February, 2011, and lodged in Court on the same date with the result that Civil Appeal No. 333 of 2010 is hereby struck out.
We award the costs of the motion to the applicant but we make no order as to costs of the struck out appeal. Those shall be our orders.
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.