Case ID:162906

Esther Jelagat Ngeny & another v Peter Chepkochoi Mitei & 2 otherseKLR

Case Metadata

Case Number:

Civil Application 81 of 2018

Parties:

Esther Jelagat Ngeny & Christopher Kiplagat Yego v Peter Chepkochoi Mitei, Barabara Kiprugut Arap Tanui & Isaiah Kimuror Tanui

Date Delivered:

07 Aug 2020

Case Class:

Civil

Court:

Court of Appeal at Eldoret

Case Action:

Ruling

Judge(s):

Sankale ole Kantai, Fatuma sichale, Agnes Kalekye Murgor

Citation:

Esther Jelagat Ngeny & another v Peter Chepkochoi Mitei & 2 otherseKLR

Case History:

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 26th June, 2014 in E.L.C. No. 193 of 2013

Court Division:

Civil

County:

Uasin Gishu

History Docket No:

ELC 193 of 2013

History Judges:

Munyao Sila

History County:

Uasin Gishu

Case Outcome:

Motion allowed

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

IN THE COURT OF APPEAL

AT ELDORET

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

CIVIL APPLICATION NO. 81 OF 2018

BETWEEN

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

ST

APPLICANT

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

ND

APPLICANT

AND

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

ST

RESPONDENT

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

ND

RESPONDENT

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

RD

RESPONDENT

(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 26

th

June, 2014

in

E.L.C. No. 193 of 2013)

*****************

RULING OF THE COURT

In a ruling delivered on 26th June, 2014

Munyao Sila, J.

struck out the

plaint in

Environment and Land Court E & L No. 193 of 2013

after finding

that the suit was res judicata, amongst other findings. A notice of appeal dated

10th 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 77

of the

rules of this Court (“the rules”)

requires that a notice of appeal be served within 7 days of its lodgment.

Rule 82

of

the rules

makes provision for institution of appeals while

rule 83

provides 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 evidence

that 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 under

rule 83 of the rules

. The applicants will have costs of the Motion.

Dated and delivered at Nairobi this 7

th

day of August, 2020.

A.K. MURGOR

…………………………….

JUDGE OF APPEAL

F. SICHALE

…………………………..

JUDGE OF APPEAL

S. ole KANTAI

…………………..……….

JUDGE OF APPEAL

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

Signed

DEPUTY REGISTRAR