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Court of AppealStruck OutCivil Appeal No. 52 of 1997

Augustine Oduodo Amanga & another v Peter Okolaochieng' [1998] KECA 163 (KLR)

Court of Appeal of Kenya
25 March 1998
ZCZ. R. ChesoniJGJ. E. GicheruROR. S. C. Omolo
205 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the record was filed late, but refused to make the winning side pay costs.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Chesoni CJ, Gicheru and Omolo JJA) determining the respondent's application to strike out Civil Appeal No. 52 of 1997, an appeal from the judgment of the High Court of Kenya at Kisumu (Wambilyangah J) dated 30 July 1996 in H.C.C.C. No. 138 of 1995. The appeal was brought by Augustine Oduodo Amanga and Karolus Ogendo Nyakwa, suing as administrators of the estates of Charles Gogo Awiti and Karilus Kaiko Okidi, against Peter Okolaochieng'. The court observed that although certified copies of the proceedings and judgment were paid for and collected on 17 October 1996, the record of appeal was not filed until 20 December 1996, which was out of time. On that basis the court ordered that the appeal be struck out. However, in a notable exercise of discretion on costs, the court declined to award the applicant (respondent) the costs of the striking-out application, meaning each side effectively bore its own costs of the application. The ruling is a single judgment of the whole court with no separate opinions and no authorities cited. Its binding significance for lower courts lies in confirming that a record of appeal filed out of time is liable to be struck out on application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the record of appeal filed out of time should be struck out on the respondent's application

Key legal issues

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01

Whether an appeal whose record was filed out of time should be struck out

Holding

The appeal was struck out because the record of appeal was filed out of time.

Reasoning

The court noted that judgment was delivered on 30 July 1996, certified copies of proceedings and judgment were collected on 17 October 1996, yet the record of appeal was not filed until 20 December 1996, which was out of time. On that basis the respondent's application to strike out the appeal succeeded, though the court declined costs.

p. 1

Legal principles established

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  • A record of appeal filed out of time is liable to be struck out on application by the respondent.

Court orders

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  1. 1.The appeal be struck out
  2. 2.The applicant's costs of the application declined (each party to bear own costs of the application)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

ZC
majority

Wrote the judgment

JG
majority
RO
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 138 of 1995
Jurisdiction invoked
Appeal to the Court of Appeal under the applicable appellate provisions (not expressly stated in the ruling)

Relief refused

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Costs of the striking-out application to the applicant/respondent

The court declined to award the applicant costs of the application despite succeeding in striking out the appeal

p. 1

Costs

The court declined to award the applicant costs of the application; no costs awarded on the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore order that the appeal be struck out but decline to award the applicant costs of the application.
p. 1Final orders - striking out and costs
Certified copies of the proceedings and judgment were paid for and collected on 17th October, 1996, but the record of appeal was not filed till 20th December, 1996. This was out of time.
p. 1Late filing of record of appeal

Issues in the judgment

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minor

Coram lists Chesoni as Chief Justice but the signature block styles him 'JUDGE OF APPEAL'

minor

Omolo's signature block reads 'JUDGE' rather than 'JUDGE OF APPEAL'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Augustine Oduodo Amanga & another v Peter Okolaochieng' [1998] KECA 163 (KLR)", Case Analysis (1998). Civil Appeal No. 52 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/163/eng@1998-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.