Kipyego & another v Kiyuk (Civil Application E041 of 2023) [2024] KECA 263 (KLR) (8 March 2024) (Ruling)
- Court
- Court of Appeal
- Case number
- 263
- Citation
- [2024] KECA 263 (KLR)
- Decided
- 8 March 2024
The applicants' application to strike out the notice of appeal is allowed.
Facts
The 1st and 2nd applicants (Kipyego and Choge) sought to strike out the respondent's (Kiyuk) notice of appeal filed against the judgment of the Environment and Land Court (E&LC) at Iten. The notice of appeal was filed and served out of time.
Issues
- Whether the notice of appeal was filed out of time.
- Whether the applicants' application was made within 30 days as required by the Court of Appeal Rules.
Reasoning
The notice of appeal was filed 25 days after the judgment was delivered, which is out of time. The applicants argued that the respondent was present during the judgment and should have filed the notice of appeal within time. The court held that Rule 77(2) is mandatory and a notice of appeal once filed out of time cannot be sanctioned by the court but must be struck out.
Outcome
The respondent's notice of appeal dated 20th July 2023 and lodged in the registry on 21st July 2023 is hereby struck out.
Orders
- The respondent's notice of appeal is struck out.
Remedies
- The respondent shall meet the applicants' costs of the application.
Authorities cited
Legislation (2)
- Court of Appeal Rules
- Rules of the Court
Cases cited (1)
- Mistry Premji Ganji (Investments) Ltd v. Kenya National Highways Authority [2019] eKLR
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