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Court of AppealOtherCivil Application No. NAI. 63 of 2002

Assa Okwemba Onyango v Omar Transmotors Limited Kariuki Ngumbi

Court of Appeal
30 July 2002
193 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal postponed a bid to strike out a Notice of Appeal until it first decided whether the appeal could be filed late.

What this practically means

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Executive summary

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This brief records a short procedural ruling of the Court of Appeal at Nairobi (Tunoi, Lakha and Bosire, JJ.A.) delivered on 30 July 2002 in Civil Application No. NAI. 63 of 2002. The applicant, Assa Okwemba Onyango, the moving party before the Court, sought to strike out a Notice of Appeal filed by Omar Transmotors Limited and Kariuki Ngumbi against a judgment of the High Court of Kenya at Nairobi (Osiemo, J) dated 15 January 2001 in H.C.C.C. No. 137 of 1998. The Court was informed that a related application, Civil Application No. 62 of 2002, seeking leave to file the appeal out of time, was pending before it. Taking the view that the outcome of the leave application would, whichever way it went, affect the strike-out application, the Court granted the adjournment sought by counsel for the respondents so that the leave application could be disposed of first, and made no order as to costs. The ruling determines no substantive issue: the strike-out application was neither allowed nor dismissed but simply deferred, and the High Court judgment was not disturbed. It cites no authority and no statute, contains a single judgment of the whole court without separate opinions, and sets no precedent binding on lower courts. Its only significance is case-management: it records the Court's recognition that an application to strike out a Notice of Appeal is sensibly heard after a pending application for leave to appeal out of time has been determined, since the latter's outcome may affect the former.

Key legal issues

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01

Sequencing of an application to strike out a Notice of Appeal against a pending application for leave to appeal out of time

Holding

The Court adjourned the strike-out application to await the disposal of Civil Application No. 62 of 2002, because the outcome of the leave application, whichever way it went, would have an effect on the strike-out application.

Reasoning

The Court gave a single-sentence reason: the outcome of the pending leave application, whichever way it went, would affect the strike-out application, so the leave application should be disposed of first. The adjournment was sought by respondents' counsel and the Court, in its case-management discretion, agreed. The ruling does not elaborate on the direction of that effect, cites no authority, and decides no substantive question about the Notice of Appeal. It is an interlocutory procedural direction, not a ratio decidendi, and lays down no rule on the merits of striking out notices of appeal.

p. 1

Legal principles established

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    Court orders

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    1. 1.Adjournment of the application granted as sought by respondents' counsel, to enable the Court to dispose of Civil Application No. 62 of 2002 first.
    2. 2.No order as to costs.
    On appeal from
    High Court of Kenya at Nairobi
    H.C.C.C. No. 137 of 1998
    Jurisdiction invoked
    Not stated in the ruling; no constitutional or statutory provision is cited. The application arises in the Court of Appeal's appellate jurisdiction in respect of a contemplated appeal from the High Court of Kenya at Nairobi (H.C.C.C. No. 137 of 1998).

    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, "Assa Okwemba Onyango v Omar Transmotors Limited Kariuki Ngumbi", Case Analysis (2002). Civil Application No. NAI. 63 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/107/eng@2002-07-30

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