. KENYA NATIONAL CAPITAL CORPORATION LIMITED 2. ANDREW DAVID GREGORY vs 1. OMEGA ENTERPRISES (KENYA) LIMITED 2. KENYA TOURIST DEVELOPMENT CORPORATION [1999] KECA 25 (KLR)
Full Case Text
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI. 63 OF 1997
BETWEEN
1. KENYA NATIONAL CAPITAL CORPORATION LIMITED
2. ANDREW DAVID GREGORY ........................... APPLICANTS
AND
1. OMEGA ENTERPRISES (KENYA) LIMITED
2. KENYA TOURIST DEVELOPMENT CORPORATION ......... RESPONDENTS
(Application to strike out Notice of Appeal in an intended appeal from a Ruling of the High Court of Kenya at Nairobi (Mr. Justice Akiwumi) dated 19th March, 1993
in
H.C.C.C. NO. 6776 OF 1992)
**********************
RULING OF THE COURT
We have before us, by way of a notice on motion under rules 42, 52 (2) (c) and 80 of the Court of Appeal Rules, the Rules, an application by Kenya National Capital Corporation Limited and Andrew David Gregory, the applicants, asking us to strike out a notice of appeal dated 22nd March, 1993, and filed by the advocates for Omega Enterprises (Kenya) Limited, the first respondent, against the decision of the superior court (Akiwumi, J as he then was) made on 19th March, 1993.
The motion is based on one ground only, that is, that no appeal has been filed within the time limited by rule 81 of the Rules.
Mr. Esmail, counsel for the first respondent, conceded that to date no appeal has been lodged the reason being that the superior court has yet to provide his firm with the copies of the proceedings and ruling the subject matter of the intended appeal. Moreover, he added, he has not received any communication from the superior court indicating that such documents are ready for collection. He exonerated his firm from any omission or failure to prefer the intended appeal on time.
However, he referred us to rule 82 which specifies the effect of default in instituting appeal. He contended that as the first respondent had not instituted an appeal within the appointed time it ought to be deemed to have withdrawn its notice of appeal.
The application for the copies of the proceedings and the ruling was made over six years ago. There is no evidence that any reminders were ever made to the superior court. Further, there is no proof that any other attempt was made to obtain these important documents. We think that it is not just sufficient to send a single letter applying for the documents and thereafter retreat to a long, deep and inordinate slumber.
This is a clear indication of sheer lack of diligence or interest to prosecute the intended appeal.
In this instance, shifting blame on to the superior court will not do. The first respondent has been guilty of laches and has exhibited lack of interest in lodging its intended appeal.
If we understood Mr. Esmail well, he did not in earnest want to oppose the application.
This application must succeed. The notice of appeal lodged in this court on 22nd March, 1993, is ordered struck out with costs.
Dated and delivered at Nairobi this 11th day of June, 1999.
R. S. C. OMOLO
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
A. A. LAKHA
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR