[2023] KECA 773 (KLR)

Abdalla & another v Temo & 6 others (Civil Application E002 of 2021) [2023] KECA 773 (KLR) (23 June 2023) (Ruling)

Neutral citation: [2023] KECA 773 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Application E002 of 2021

SG Kairu, P Nyamweya & GV Odunga, JJA

June 23, 2023

Between

Swafiya Abdalla

1st Applicant

Fatuma Swaleh

2nd Applicant

and

Bahati Temo

1st Respondent

William Mjape

2nd Respondent

Stephen Kahindi Mwanzani

3rd Respondent

Charles Charo

4th Respondent

Johnson Koya

5th Respondent

Kesi Mjape

6th Respondent

Robert Lugo

7th Respondent

((Being an appeal from the ruling and order of Hon Justice C. Yano delivered on the 11th day of April 2018 in Mombasa ELC Case No 155 of 1993 Environment & Land Case 155 of 1993 )

Ruling

1. The Notice of Motion, the subject of this ruling is dated January 11, 2021 and was lodged on January 18, 2021. It seeks, in substance, an order that the joint Notice of Appeal dated June 4, 2019 and the Record of Appeal filed on June 27, 2019 be struck out. The grounds upon which the application is based are that the Notice of Appeal is incompetent and that being the position, the Record of Appeal which is based on the said Notice of Appeal is similarly incompetent.

2. In opposition to the application it was contended, inter alia, that the application was filed out of time.

3. We heard the reference vide the Court’s virtual platform on February 27, 2023 during which Learned Counsel Mr S. M. Kimani appeared for the Applicants while Mr Tamini Lewa appeared for the 1st, 2nd 6th and 7th Respondents. Both counsel relied on their written submissions which they highlighted before us.

4. From the copy of the Notice of Appeal annexed to the affidavit in support of the instant application, the Notice of Appeal was served on June 7, 2019 pursuant to the leave granted to the Respondents herein in Civil Application No 5 of 2019 on May 28, 2019. Under Rule 84 of the 2010 Court of Appeal Rules, any person affected by an appeal may apply to strike out Notice of Appeal or Appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time. However, the proviso to Rule 84 required such an application to be brought before the expiry of thirty (30) days from the date of service of the Notice of Appeal or Record of Appeal as the case may be. Similar provisions are now found in Rule 86 of the 2022 Rules. In this regard, it is notable that the instant application to strike out the Notice of Appeal was lodged on 18th January, 2021 about 1 and ½ years since the service on the Applicants of the Notice of Appeal.

5. The Applicants had by way of Civil Application No 4 of 2021 sought to have time extended to them within which to make this present application. That application was however dismissed by a single Judge of this Court on February 18, 2022 and a subsequent reference to the full Court has been unsuccessful.

6. However, the Applicants argue that the time limited for filing this application has not run out since the leave that was granted to file the Notice of Appeal out of time was granted to 7 Respondents and only four of them filed the Notice of Appeal. In the Applicants’ view, time for making the application can only start running when all the said Respondents file the Notice of Appeal or when the Notice of Appeal is filed by all of them.

7. With due respect we disagree with this argument. Rule 86 (formerly rule 84) of the Rules of this Court is clear that an application for striking out a Notice of Appeal must be made within 30 days of the service of the Notice of Appeal. The rule does not make a distinction between a valid Notice of Appeal and an invalid one. The interpretation given by the Applicants cannot therefore be correct.

8. As expressed by Kiage, JA in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6others [2013] eKLR:“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”

9. As was held by this Court in Onjula Enterprises Ltd vs. Sumaria [1986] KLR 651, the Court of Appeal held that:“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved. See London Association for the Protection of Trade & Another vs. Greenlands Limited [1916] 2 AC 15 at 38.

10. The matter before us is clear attempt to bend or circumvent the Rules and a shifting of goal posts. The Applicants, realising that they were out of time sought for extension of time to file the instant application which application did not succeed. They cannot at the same time argue that their application was within time since some of the Respondents to whom leave was granted to file the Notice of Appeal had not done so. A party cannot be permitted to approbate and reprobate at the same time.

11. We find that respondents’ application untenable having been made out of the prescribed time. Accordingly, we dismiss the same with costs to the respondents.

12. It is so ordered

DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE, 2023S. GATEMBU KAIRU, FCIArb.………………………JUDGE OF APPEALP. NYAMWEYA…………………………JUDGE OF APPEALG.V. ODUNGA………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR