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DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] KECA 169 (KLR)

DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] KECA 169 (KLR)
Citation
DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] KECA 169 (KLR)
Media Neutral Citation
[2012] KECA 169 (KLR)
Court
Court of Appeal
Court station
Court of Appeal at Kisumu
Case number
Civil Appeal (Application) 333 of 2010
Alternative citations
DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] eKLR
Judgment date
22 March 2012
Language
English
Type
Judgment
Case action
Ruling
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REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Appeal (Application) 333 of 2010

DISHON OCHIENG .................................. APPELLANT/RESPONDENT

 
AND
 

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

 
in
 

HCCC NO. 162 OF 2001)

**************

RULING OF THE COURT

SDA Church, Kodiaga, the applicant herein, asks us to strike out Civil Appeal No 333 of 2010 which was lodged against them on 16th December, 2010, by Dishon Ochieng, the respondent herein. The motion to strike out the appeal is brought pursuant to Rule 84 of the Court of Appeal Rules and is premised on two grounds, namely:

“(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.

 Dated and delivered at Kisumu this 22nd day of March, 2012.
 
 
R. S. C. OMOLO
---------------------------

JUDGE OF APPEAL

 
 
E. M. GITHINJI
---------------------------

JUDGE OF APPEAL

 
 

ALNASHIR VISRAM

----------------------------
JUDGE OF APPEAL
 
 

I certify that this is a true copy of the original.

DEPUTY REGISTRAR
 
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