Esther Jelagat Ngeny & Christopher Kiplagat Yego v Peter Chepkochoi Mitei, Barabara Kiprugut Arap Tanui & Isaiah Kimuror Tanui [2020] KECA 356 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: MURGOR, SICHALE & KANTAI, JJ.A.)

CIVIL APPLICATION NO. 81 OF 2018

BETWEEN

ESTHER JELAGAT NGENY......................................1STAPPLICANT

CHRISTOPHER KIPLAGAT YEGO ......................2NDAPPLICANT

AND

PETER CHEPKOCHOI MITEI ............................1STRESPONDENT

BARABARA KIPRUGUT ARAP TANUI ............2NDRESPONDENT

ISAIAH KIMUROR TANUI................................3RDRESPONDENT

(An application to strike out or withdraw the notice of appeal from the Ruling of the Environment and Land Court of Kenya at Eldoret (Munyao, J.) dated 26thJune, 2014inE.L.C. No. 193 of 2013)

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RULING OF THE COURT

In a ruling delivered on 26th June, 2014 Munyao Sila, J. struck out theplaint in Environment and Land Court E & L No. 193 of 2013 after findingthat the suit was res judicata, amongst other findings. A notice of appeal dated10th July,2014 was filed in that court but it does not appear as if much followed that action.

The applicants have asked us in the Motion on notice said to be brought under rules 82, 83 and 84 of the rules of this Court and Sections “1A and 1B Civil Procedure Act”to deem the said notice of appeal to have been withdrawn. In grounds in support of the Motion and in an affidavit of the 1st applicant Esther Jelagat Ngeny sworn at Eldoret it is said amongst other things that the respondents have failed to serve the said notice on the applicants; that no appeal has been filed and it is over 60 days since the date of the notice of appeal and the respondents continue to enjoy a stay of execution order granted by the trial court and that delay in instituting an appeal is inordinate and unreasonable.

Rule 77of therules of this Court (“the rules”)requires that a notice of appeal be served within 7 days of its lodgment.

Rule 82ofthe rulesmakes provision for institution of appeals whilerule 83provides for situations where the appellant fails to institute an appeal within the required time.

We are told that the intended appellants have filed a notice of appeal; they did not serve it on the applicants contrary to the rules; there is no evidencethat proceedings were applied for and it is over 60 days since notice of appeal was filed. In the premises we agree with the applicants that the notice of appeal be and is hereby deemed as withdrawn underrule 83 of the rules. The applicants will have costs of the Motion.

Dated and delivered at Nairobi this 7thday of August, 2020.

A.K. MURGOR

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

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

Signed

DEPUTY REGISTRAR