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Court of AppealAllowedCivil Appeal (Appli) 230 of 2007

Stanley K. Chebiator v Lucas Changwony & 3 others [2008] KECA 288 (KLR)

Court of Appeal of Kenya
10 April 2008
SBS.E.O BosireEOE.O. O'KubasuWDW.S. Deverell
242 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an appeal filed late without permission, confirming that deadlines matter and the losing side pays 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 Eldoret on a motion dated 23rd October 2007 by Stanley K. Chebiator, the respondent in Civil Appeal No. 230 of 2007, seeking to strike out that appeal. The appeal lay from a ruling of the High Court at Eldoret (Gacheche, J) dated 13th June 2006 in H.C. Civil Appeal No. 43 of 1996. The ground pressed was that the appeal was filed out of time without leave. Although the appellants (Lucas Changwony, Nicholas Komen, James Changwony and Joseph Chepkoiya) had filed a replying affidavit opposing the application, their counsel, Mr. Gicheru, informed the Court that he had reconsidered the matter and did not wish to oppose it, conceding properly that the record of appeal was filed out of time without leave. On that concession the Court allowed the application, struck out Civil Appeal No. 230 of 2007, and awarded the applicant the costs of both the application and the appeal. The ruling is significant chiefly as an illustration that an appeal filed out of time without leave is vulnerable to being struck out, even on an unopposed motion, and that costs of both the striking-out application and the appeal follow the successful applicant. No substantive appeal therefore remains; the High Court ruling of 13th June 2006 is undisturbed.

Questions the Court framed

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

  1. 1.Whether Civil Appeal No. 230 of 2007, filed out of time without leave, should be struck out

Key legal issues

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01

Whether an appeal instituted without leave after expiry of the prescribed period may be struck out

Holding

The Court allowed the application and struck out the appeal because the record of appeal was filed out of time and without leave.

Reasoning

The applicant sought striking out of the appeal on the ground that it was filed out of time without leave. Although a replying affidavit had initially been filed opposing the motion, counsel for the appellants reconsidered and properly did not oppose, conceding that the record was filed out of time without leave. On that concession and the clear procedural default, the Court allowed the application and struck out the appeal, awarding costs of both the application and the appeal to the applicant.

p. 1

Legal principles established

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  • A record of appeal filed out of time without leave of the Court is liable to be struck out on that ground alone.

Court orders

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  1. 1.Civil Appeal No. 230 of 2007 struck out
  2. 2.Costs of both the application and the appeal awarded to the applicant/respondent

The bench

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

SB
majority
EO
majority
WD
majority
On appeal from
High Court of Kenya at Eldoret
H.C. Civil Appeal No. 43 of 1996
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal to strike out an appeal filed out of time without leave (application under the Court's procedural jurisdiction; no specific provision stated in the ruling)

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.

In the circumstances, we allow the application and strike out the aforesaid appeal, with costs both of the application and the appeal to the applicant/respondent. It is so ordered.
p. 1Final orders - striking out of appeal and costs
clearly the record of appeal was filed out of time without leave
p. 1Ground for striking out - filing out of time without leave

Issues in the judgment

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minor

Party roles are inverted in the cause title: the applicant is labelled APPLICANT/RESPONDENT while the respondents are labelled RESPONDENTS/APPELLANTS, and the heading describes the application as one to strike out the appeal being an appeal from the High Court ruling.

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, "Stanley K. Chebiator v Lucas Changwony & 3 others [2008] KECA 288 (KLR)", Case Analysis (2008). Civil Appeal (Appli) 230 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/288/eng@2008-04-10

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