[2021] KECA 954 (KLR)
The court found that the respondent had complied with the procedural requirements under Rule 82(1) and (2) of the Court of Appeal Rules by filing and serving the letter bespeaking proceedings on the applicant's counsel, as evidenced by the acknowledged receipt. The delay in filing the appeal was attributed to the...
Source-derived case information.
- Citation
- [2021] KECA 954 (KLR)
- Parties
- Applicant: Anthony Mbwabi Khayimba; Respondent: Laxmanbhai Construction Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 366 of 2019
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- F Sichale, S ole Kantai
- Legal Topics
- Notice of Appeal, Appeal Timelines, Service of Documents, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Mbwabi Khayimba
Applicant
Laxmanbhai Construction Limited
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondent failed to file an appeal within the prescribed sixty days under Rule 82(1) of the Court of Appeal Rules.
- 2 Whether the respondent served the applicant with the letter bespeaking proceedings as required by the Rules.
- 3 Whether the delay in filing the appeal was attributable to the respondent or to the court.
Ratio Decidendi
The court found that the respondent had complied with the procedural requirements under Rule 82(1) and (2) of the Court of Appeal Rules by filing and serving the letter bespeaking proceedings on the applicant's counsel, as evidenced by the acknowledged receipt. The delay in filing the appeal was attributed to the court's delay in providing the proceedings, not to any omission by the respondent. Therefore, the respondent could not be faulted for the delay, and the application to strike out the Notice of Appeal lacked merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to strike out the Notice of Appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
[CORAM: ASIKE-MAKHANDIA, SICHALE & KANTAI, JJ.A]
CIVIL APPLICATION NO. 366 OF 2019
BETWEEN
ANTHONY MBWABI KHAYIMBA...............................................................................APPLICANT
AND
LAXMANBHAI CONSTRUCTION LIMITED........................................................RESPONDENT
(An application to strike out the Notice of Appeal filed by the respondent on 8th November, 2018
against the judgment of the High Court of Kenya at Nairobi (L. Njuguna, J)
dated 25th October, 2019
in
CIVIL CASE NO. 223 OF 2016)
*****************
RULING OF THE COURT
The applicant, Anthony Mbwabi Khayimba filed a Notice of Motion dated20thNovember, 2019predicated upon Rules 82, 83 and 84 of this Court’s Rules (the Rules). In the main, the applicant seeks to strike out the respondent’s (Laxmanbhai Construction Limited) Notice of Appeal dated 7th November, 2019 and filed in court on 8th November, 2019 expressing its intent to file an appeal against the judgment of Njuguna, J delivered on 25th October, 2018.
In the applicant’s supporting affidavit sworn on 20th November, 2019, he deposed that the respondent has failed to file an appeal within sixty (60) days from 25th October, 2018 (the date of the judgment) as provided by Rule 82 of the Rules; further that the said Notice of Appeal was filed for the sole purpose of enabling the applicant obtain an order of stay and that being paraplegic and confined to a wheel chair, he needs to access the fruits of his judgment which will enable him seek further medical treatment abroad.
In his written submissions dated 17th September, 2020, the applicant reiterated that the respondent has failed to file its appeal within sixty (60) days from the date of judgment as required by Rule (82(1)) and that Rule 82(1) cannot avail the respondent as it did not serve upon the applicant its request for proceedings (if at all).
In opposition to the motion, Charles Mochoge, the Legal Officer of the respondent swore an affidavit dated 27th October, 2020. He deposed that the respondent filed its Notice of Appeal dated 7th November, 2018, together with the letter bespeaking the proceedings on 8th November, 2018; that it served the applicant’s counsel with the Notice of Appeal and the letter bespeaking the proceedings on 8th November, 2018; that the respondent has made several follow ups by way of letters and the proceedings have not been availed to the respondent by the court. On 9th November, 2020, the motion came up before us for consideration
“on written submissions, on no appearance of counsel”.
Firstly, we note that the respondent’s letter dated 7th November, 2018 which was annexed as exhibit “CM-2” by the respondent, is a letter bespeaking the proceedings. This letter is copied to “Nyasae & Associates”, the applicant’s counsel. Further, the letter has the stamp of the firm of Nyasae & Associates as having been received on 8th November, 2018.
Given the above, it is therefore not true that the respondent’s letter of 7th November, 2018bespeaking the proceedings was not copied to the applicant’s counsel on record then. It is also not true that the applicant’s counsel was not served with the said letter, as the letter has the applicant’s counsel’s office stamp acknowledging receipt of the letter on 8th November, 2018. In our view, the respondent has brought itself within the ambit of Rule 82 (1) of this Court’s Rules as the letter bespeaking the proceedings was copied and served upon the applicant as stipulated under Rule 82 (2).
Given that the respondent took all procedural steps in its application for proceedings for the purpose of filing an appeal, the delay in availing the proceedings having been occasioned by the court, the respondent cannot be faulted for the delay.
We find no merit in the motion. It is hereby dismissed with costs to therespondent.
Dated and Delivered at Nairobi this 19thDay of February, 2021.
ASIKE-MAKHANDIA
...................................
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