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Court of AppealStruck OutCivil Appeal No. 52 of 1996· [1998] KECA 202 (KLR)

AUGUSTINE ODUODO AMANGA & ANOTHER vs PETER OKOLA OCHIENG' [1998] KECA 202 (KLR)

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

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Kenya's Court of Appeal struck out an appeal filed late, but refused the winning party their legal costs of the application.

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 JJ.A) delivered on 25th March 1998 in Civil Appeal No. 52 of 1996, an appeal from the judgment of Wambilyangah J in H.C.C.C. No. 138 of 1995 (High Court, Kisumu) dated 30th July 1996. The appeal was brought by the administrators of two estates in a civil dispute against Peter Okola Ochieng'. The respondent applied to strike out the appeal on the ground that the record of appeal was filed out of time. The court found that the judgment appealed from was delivered on 30th July 1996; certified copies of the proceedings and judgment were paid for and collected on 17th October 1996, but the record of appeal was not filed until 20th December 1996, which was out of time. The court accordingly struck out the appeal. Although the respondent succeeded on the application, the court exercised its discretion to decline awarding the costs of the application, so no costs were awarded. The ruling is a single judgment of the whole court with no separate opinions or dissents, and it cites no authorities or statutory provisions. Its binding effect for lower courts lies in confirming that a record of appeal filed out of time after collection of certified proceedings is liable to be struck out on 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, but the court declined costs of the application.

Reasoning

The judgment appealed from was delivered on 30th July 1996. The appellants collected certified copies of the proceedings and judgment on 17th October 1996, yet the record of appeal was not filed until 20th December 1996, which was out of time. The respondent applied to strike out the appeal. The court found the delay established and struck out the appeal, but in its discretion declined to award the respondent the costs of the application.

p. 2

Legal principles established

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  • An appeal filed out of time (where the record of appeal is not filed within the prescribed period after obtaining certified copies of proceedings and judgment) is liable to be struck out on application.

Court orders

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  1. 1.The appeal be struck out
  2. 2.The applicant's costs of the application were declined (no costs awarded)
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 138 of 1995
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (the ruling does not cite a specific constitutional or statutory provision)

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 vs PETER OKOLA OCHIENG' [1998] KECA 202 (KLR)", Case Analysis (1998). Civil Appeal No. 52 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/202/eng@1998-03-25

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