[1998] KECA 112 (KLR)
The Court found that the notice of appeal was served outside the mandatory seven-day period required by rule 76 of the Court of Appeal Rules. The evidence showed that the notice was filed on 18th May, 1994, but served on 31st May, 1994. The Court held that compliance with the service period is a mandatory...
Source-derived case information.
- Citation
- [1998] KECA 112 (KLR)
- Parties
- Applicant: David Kahira Mungai; Respondent: Grace Wairimu Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 180 of 1998
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out as incompetent.
- Judges
- RO Kwach, GS Pall, E Owuor
- Legal Topics
- Notice of Appeal, Service of Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kahira Mungai
Applicant
Grace Wairimu Mwangi
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was served within the mandatory seven-day period as required by rule 76 of the Court of Appeal Rules.
- 2 Whether failure to serve the notice of appeal within the prescribed period renders the notice incompetent.
Ratio Decidendi
The Court found that the notice of appeal was served outside the mandatory seven-day period required by rule 76 of the Court of Appeal Rules. The evidence showed that the notice was filed on 18th May, 1994, but served on 31st May, 1994. The Court held that compliance with the service period is a mandatory requirement, and failure to do so renders the notice of appeal incompetent. Consequently, the notice of appeal was struck out.
Court Disposition
Notice of appeal struck out as incompetent.
Orders
- The notice of appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU (Coram: Kwach, Pall & Owuor, JJ.A.) CIVIL APPLICATION NO. NAI. 180 OF 1998
BETWEEN
DAVID KAHIRA
MUNGAI..................................APPLICANT
AND GRACE WAIRIMU MWANGI.................................RESPONDENT
(Application to strike out the Notice of Appeal in an intended appeal from the decision of the High Court of Kenya at Nakuru (Lady Justice Nambuye)
in H.C.C.C. NO. 2 OF 1989) *************************
RULING OF THE COURT
Paragraph 4 of the advocate for the applicant's affidavit in support of the motion says that he was served with the notice of appeal on 31st May, 1994. That means that the notice of appeal was served outside the period of seven days. It is true that this particular matter was not made a ground for the striking out the notice of appeal.
Service of notice in accordance with rule 76 within a period not exceeding seven days is a mandatory provision. Mr. Kagucia asks for an adjournment to enable him to file an affidavit in reply on this point but it would not help the matter.At the back of the notice of appeal the date of receipt is stated as 31st May, 1994 whereas the notice was filed on 18th May, 1994. This is a fundamental mistake. On the evidence before us we are satisfied that the notice was not served in accordance with rule 76. That makes a notice of appeal incompetent and we strike it out with no order as to costs.
Made and delivered at Nakuru this 22nd day of September, 1998.
R.O. KWACH
JUDGE OF APPEAL
G.S. PALL
JUDGE OF APPEAL
E. OWUOR
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR