[2023] KECA 1326 (KLR)

Attorney General v Kioko (Civil Appeal (Application) E017 of 2022) [2023] KECA 1326 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1326 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal (Application) E017 of 2022

SG Kairu, JW Lessit & GV Odunga, JJA

November 10, 2023

Between

Attorney General

Applicant

and

Micheal Kioko

Respondent

(Being an application for to strike out the appeal from a judgement of the Mombasa High Court in Constitutional Petition 19 of 2019 that was delivered on 19th April 2021))

Ruling

1. Before us is an amended Notice of Motion dated April 12, 2023 expressed to be brought pursuant to rules 84, 85 and 85 of the Court of Appeal Rules 2022, hereinafter the Rules. The application seeks two orders. The first order sought is to have the Appeal herein marked as withdrawn with costs to the respondent while the second order sought is for striking out of the appellant’s appeal for failure to file a record of appeal within 60 days of lodging of the Notice of Appeal.

2. The application is supported by an affidavit sworn by Emmanuel Makuto, a Senior State Counsel in the Office of the Attorney General on April 12, 2023. According to the deponent, judgement was delivered in Mombasa High Court Constitutional Petition No. 19 of 2019 on April 19, 2021; that the respondent served the applicant with a Notice of Appeal dated 30th April, 2023 before it was lodged with the Registrar of the Superior Court; that the respondent failed to serve the applicant with a letter seeking certified typed proceedings from the Superior Court; that on March 20, 2023, a Record of Appeal was served by the respondent on the applicant, 1 year and 11 months after the delivery of the judgement of the superior court; that that the Record of Appeal does not comply with the requirements of rule 84 of the Court of Appeal Rules and is defective; that the memorandum of appeal was not filed and served on the applicant within 60 days of lodging of the Notice of Appeal; that while the Record of Appeal is alleged to have been filed on February 28, 2022, the judgement which forms part of the Record of Appeal was certified as a true copy of the original on March 16, 2022; that the application was brought timeously having been filed one day after service of the Record of Appeal.

3. In response to the application, the respondent filed a replying affidavit sworn on May 8, 2023. According to the respondent, upon delivery of the judgment of the High Court on the 19th day of April 2021, he prepared his Notice of Appeal on the 30th day of April 2021, filed it on the 3rd day of May 2021 and served it on the Applicant on the 4th day of May, 2021 at 3:20 pm. Subsequently, he began the process of assembling the Record of Appeal as required in law but suffered delays because of the challenges in obtaining certified copies of proceedings. He, however received a Certificate of Delay on the 7th day of February 2022 and in his view, no time had elapsed from the day of lodging the Notice of Appeal since the Certificate of Delay expanded the time within which to lodge the Record of Appeal by sixty days, which ran from the 4th d February 2022. He however, filed his Record of Appeal on the 28th day of February 2022 in which he incorporated the Memorandum of Appeal dated the same date, as well as all other documents required to be filed to complete the Record of Appeal.

4. According to the respondent, he fully complied with rule 82 of the Court of Appeal Rules, 2022 since pursuant to rule 84 of the Rules, he did serve his application for typed proceedings of the superior court on the 17th day of May 2021 and he annexed a copy of the letter bearing a stamp indicating its receipt by the applicant. The respondent averred that in the foregoing premises, the certificate of delay was properly obtained and the time within which the present appeal was required to be filed was sufficiently enlarged for him to be able to file and serve my Record of Appeal.

5. The respondent averred that as the applicant failed to file and serve a notice of a full and sufficient address for service under rule 81(1) of the Rules, this led to the inoperability of rule 99(1) of the Rules as a result of which there was no way in which the filed Record of Appeal could be served on the applicant within the requisite 7 days that are stipulated by the Rules.

6. The respondent disclosed that upon filing his Record of Appeal, he made efforts to appoint a firm of advocates to represent him in the appeal due to his financial incapacitation and that the process of appointing the advocates and having them mapped onto the e-filing system regrettably took a significant amount of time. He however, served the Record of Appeal together with his application to consolidate the present appeal with Nairobi Civil Appeal 536 of 2019; Eric Gitari v the Attorney General & 20 others upon the directions of the Court.

7. It was therefore the respondent’s position that he was not indolent in prosecuting this appeal but was as proactive as he could be and that the applicant never raised these issues in response to the application for consolidation hence this application is an afterthought. Based on legal advice, it was averred that rule 84 of the Rules, 2022 which both stipulate a 30 day timeline to strike out a Notice of Appeal, was contravened by the applicant hence this application is incompetent and ripe for dismissal.

8. Regarding the discrepancy in the dates when the judgement was certified and the date of the filing of the record, the respondent averred that since it is the Deputy Registrar of the Court who certifies pleadings, including judgments, for purposes of assembly of a Record of Appeal, it was not his fault that the date affixed on the certified judgment appeared to be after the date of filing the Record of Appeal, as all documents were duly supplied to him during the issuance of the certificate of delay and a presumption of regularity applies. It was urged that since the appeal is in the public interest and addresses weighty and substantive questions of law that affect the lives of many Kenyans, the appeal should therefore be heard and determined on its merits; that the Applicant's amended Notice of Motion Application dated the 12th day of April 2023 having been amended without the leave of this Court is incompetent and ripe for striking out with costs to the respondent; and that the Court should note that all these events occurred in the pendency of the COVID-19 pandemic which significantly affected all processes required to file and serve a notice and Record of Appeal. We were urged to dismiss the applicant's Notice of Motion application with costs.

9. We heard the application on June 27, 2023, on the Court’s virtual platform during which learned counsel, Mr Emmanuel Makuto appeared for the applicant while Mr Mutula Gilbert appeared for the respondent. Counsel relied on their respective written submissions which they briefly highlighted. Since the submissions mirror the contents of the respective affidavits, we see no need to reproduce them here.

10. The first issue for determination is whether the application was timeously filed. The rule 86 of the Court of Appeal Rules, 2022 provides that:A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground—a.that no appeal lies; orb.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:Provided that an application to strike out a Notice of Appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the Notice of Appeal or Record of Appeal, as the case may be.

11. The respondent argues that the application ought to have been made within 30 days. That contention calls for a re- examination of the above rule. The proviso to the rule was introduced by the 2010 version of the Court of Appeal Rules. The rationale for its introduction as appreciated by this Court in David Ojwang Okebe & 10others v South Nyanza Sugar Company Limited Civil Appeal (Application) No. 139 of 2008 [2009] KLR 310 where the Court, citing with approval its decision in Sarah Achieng Salasia v Fred Muchira O. & 2others Civil Application No. Nai. 188 of 2004 [2005] 2 EA 270; [2005] 1 KLR 762, expressed itself as hereunder:“The provisions of the proviso to rule 80 of the Court of Appeal Rules are applicable to both the Notice of Appeal and the appeal and this must be plainly so from the logic of it, although the wording could have been, expressly, better put. The starting point is the mischief that the amendment of the rule was intended to address and that was the practice by parties, either by design, negligence or pure inaction, waiting for days, months or even years until the very minute when the appeal is called out for hearing, only to seek the striking out of either the Notice of Appeal or the appeal or both. If a person affected by an appeal chooses to strike out the Notice of Appeal or the appeal or either of them, they are free to do so under the amended rule, but only within 30 days of service thereof; if it is an application in respect of the Notice of Appeal, then the challenge should be made within 30 days of service thereof and if it is the appeal itself, the same limitation applies.”

12. One of the grounds upon which the appeal is sought to be struck out is that the Record of Appeal was served outside the prescribed period. The respondent seems to be of the view that the timelines in the above proviso apply to such scenario. With due respect to the respondent that interpretation would be illogical. We emphasise that the limitation is introduced in the proviso to rule 86. A proviso is defined by Black’s Law Dictionary 10th Edition at page 1420 as:“1. A limitation, condition, or stipulation upon whose compliance a legal or formal document’s validity or application may depend. 2. In drafting, a provision that begins with the words provided that and supplies a condition, exception or addition.”

13. In the case of rule 86, the limitation, condition or stipulation only kicks in upon one being served by either the Notice of Appeal or Record of Appeal. In other words, the limitation does not apply where the contention is that service has not been effected at all or where a Record of Appeal has not been filed within the prescribed 60 days of the filing of the Notice of Appeal. In the latter case, a respondent, as of necessity must wait for 60 days to lapse before he can apply to have the Notice of Appeal deemed as withdrawn. That being the position, he cannot be expected to make such an application within 30 days of service of the Notice of Appeal for the simple reason that the appellant’s time for filing the Record of Appeal would still be running.

14. On the issue whether or not the Record of Appeal was served out of time, the respondent’s response is that he requested for proceedings within time and copied the request for the same to the applicants. He exhibited a copy of a duly acknowledged letter bearing what appeared to be a stamp of the applicant. While the applicant’s position is that the stamp does not belong to the applicant, we are not in a position to verify that allegation within the ambit of these proceedings. Suffice it to say that since it is the applicant who contending that the said stamp is not its stamp, the burden of proof was on it, pursuant to section 112 of the Evidence Act to, prove that fact since the authenticity of the stamp was a fact especially within the knowledge of the applicant. He could have for example produced an imprint of its genuine stamp, but this it did not do. Based on the material placed before us, we find that the letter bespeaking proceedings was duly copied to the applicants.

15. Based on our finding above, it follows that the certificate of delay was properly issued and since it is not contested that based on that certificate the appeal was still out of time, we find that the appeal was filed within the prescribed time.

16. The applicant however contends that the Notice of Appeal was not served on it since what was served was a copy that had not been endorsed by the Deputy Registrar of the High Court. Rule 79(1) of the Court of Appeal Rules, 2022 (formerly rule 76(1) of the 2010 Rules) provides that:An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly affected by the appeal.

17. What this rule provides is that a Notice of Appeal may be served before it is lodged or, where it has been lodged, within seven days of its being lodged. To our mind, there is a very good reason for this provision. There may be occasions when due to reasons which an intending appellant cannot be faulted for, the Notice of Appeal is not endorsed by the Deputy Registrar in good time to enable the intending appellant retrieve it and serve it within the prescribed timelines. If it were the rule that only the endorsed Notice of Appeal must be served, then such a party would be penalised notwithstanding the fact that he has taken all necessary steps towards the commencement of the appeal process. In that event this Court would be doing injustice to such a party and yet a court of justice has no jurisdiction to do injustice. See M Mwenesi v Shirley Luckhurst &another Civil Application No. Nai. 170 of 2000 and Kenya Industrial Estates Ltd v Transland Shoe Manufacturers Ltd. & 2others Civil Application No Nai 364 of 1999.

18. It therefore follows that a Notice of Appeal that has been filed but not “lodged”’ may validly be served. Our view is supported by the decision in Gulamhussein Noormohamed Cassam &another v Shashikant Ramji Sachania &another 1 KAR 24 in which the Court interrogated the then rule 74(1) and (2) of the Court of Appeal Rules which are in pari materia with the rules under consideration before us and concluded that:“Notice of Appeal may be served on the party directly affected by the appeal without it being signed by the Registrar, and without it also receiving any official recognition or sanction by the court either before or within seven days after lodging it in duplicate with the Registrar of the Superior Court who is required under rule 74 of the Court of Appeal Rules forthwith to send one copy thereof to the appropriate registry.”

19. Similarly, in Shital Bimal Shah & 2others v Akiba Bank Limited [2006] 2 EA 323, Waki, JA, expressed himself as hereunder:“Rule 76 of the Court of Appeal Rules clearly shows that notice of appeal may be served on the party directly affected by the appeal without it being signed by the Registrar, either before or within seven days after lodging it. There is no prohibition in the Rules against serving notice of appeal even before it is lodged in the Superior Court.”

20. We therefore find no substance in the submission that the Notice of Appeal that was served on the applicant was invalid.

21. As for the failure by the respondent to serve the Record of Appeal, the respondent averred, which averment was not disputed, that the applicant did not file its address for service upon being served with the Notice of Appeal. Rule 81(1) of the Rules of this Court provide that:a.Each person on whom a notice of appeal is served shall—a.within fourteen days after service, lodge in the appropriate registry and serve on the intended appellant a notice of a full and sufficient address for service; andb.within a further fourteen days after service, serve a copy of such notice of address for service on every other person named in the notice of appeal as a person intended to be served.

22. The applicant did not contend that it complied with this rule.Instead, the applicant’s assertion was that since it was not served with a duly endorsed Notice of Appeal, it had no obligation to comply therewith. We have already found that the Notice of Appeal served on the applicant was valid. This Court, while referring to the then rule 78(1)(a) [now rule 81(1)(a)] of the Court of Appeal Rules, in Taracisio Githaiga Ruithibo v Mbuthia Nyingi Civil Appeal No. 21 of 1982; [1984] KLR 505 held that:“Rule 78(1)(a) imposes a duty upon a respondent, but only if he has been served with a notice of appeal, to lodge in appropriate registry and serve the intended appellant with notice of a full and sufficient address for service. The respondent is entitled to say that in the circumstances of this appeal there was no failure on his part to comply with rule 78(1)(a) but a respondent who fails to do so after he has been served with notice of appeal, however, runs the risk of having the appeal determined to his detriment without being heard. He incurs no such risk even if he becomes aware howsoever otherwise that an appeal has been filed or is intended to be filed.”

23. The applicant ought to have complied with rule 81(1)(a) of the Rules of this Court if it expected to be served with the Memorandum and Record of Appeal. Having itself failed to do so, it cannot now be heard to complain that it was not served with the Memorandum and Record of Appeal and seek to obtain favourable orders whose effect would be to terminate the appeal, when it failed to comply with a provision that would have triggered service of the Record of Appeal on it. The applicant cannot be permitted to create an absurd situation and use it to its advantage. That ground as a basis of striking out the appeal also fails.

24. Regarding the issue of judgement which forms part of the Record of Appeal being certified as a true copy of the original on March 16, 2022 after the date of the filing of the Record of Appeal, this submission was made to try to persuade us to find that there was backdating of the Record of Appeal. With due respect we have no material upon which we can make such a fundamental finding. In any case, there is no requirement for certification of a judgement being appealed against in our Rules.

25. In the premises, we find no merit in this Motion which we hereby dismiss with costs to the respondent.

DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF NOVEMBER 2023. S. GATEMBU KAIRU, FCIArb.............................JUDGE OF APPEALJ. LESIIT.............................JUDGE OF APPEALG. V. ODUNGA.............................JUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR