Case ID:160727

Wycliffe Sikuku Walusaka v Philip Kaita Wekesa [2020] eKLR

Case Metadata

Case Number:

Environment and Land Appeal 40 of 2019.

Parties:

Wycliffe Sikuku Walusaka v Philip Kaita Wekesa

Date Delivered:

29 Jun 2020

Case Class:

Civil

Court:

Environment and Land Court at Bungoma

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao

Citation:

Wycliffe Sikuku Walusaka v Philip Kaita Wekesa [2020] eKLR

Court Division:

Environment and Land

County:

Bungoma

Case Outcome:

Notice of Motion struck out

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC APPEAL NO. 40 OF 2019.

WYCLIFFE SIKUKU WALUSAKA............................APPELLANT

VERSUS

PHILIP KAITA WEKESA.........................................RESPONDENT

29

th

June 2020

Coram: B. N. Olao JUDGE

(in chambers)

R U L I N G

Upon perusal of the Appellant’s Notice of Motion dated 22

nd

June 2020 and filed herein on 24

th

June 2020 seeking a stay of execution of the Judgment and decree in

BUNGOMA CMCC NO 418 OF 2017

pending appeal, I notice that the Memorandum of Appeal annexed thereto and dated 14

th

November 2019 is not signed.

Order 42 Rule 6 of the Civil Procedure Rules

on which the Notice of Motion is predicated requires that before an application such as this one is considered, the procedure for instituting an appeal from a Subordinate Court will have been complied with.

Order 42 Rule 1(1) of the Civil Procedure Rules

states that: -

“Every appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.”

Since the Memorandum of Appeal is not signed, it has no validity in law. It cannot therefore be the basis upon which the Notice of Motion dated 22

nd

June 2020 can properly be founded.

I do not consider that lapse to be a mere technicality which can be cured by

Article 159(2)(d) of the Constitution

since it impacts on the jurisdiction of this Court to determine not only the application but even the appeal itself. I shall however not dismiss the application. I will only strike it out to enable the Applicant regularize his pleadings.

The Notice of Motion dated 22

nd

June 2020 is accordingly struck out.

Boaz N. Olao.

J U D G E

29

th

June 2020

.

Ruling dated, signed and delivered at BUNGOMA this 29

th

day of June 2020 through electronic mail in view of the guidelines following the COVID – 19 pandemic.

Boaz N. Olao.

J U D G E

29

th

June 2020.