[2008] KECA 151 (KLR)
The court found that the affidavit of service relied upon by the respondent was manifestly false, as it contained erroneous details regarding the court, the appeal number, and the date of swearing. The respondent's counsel candidly admitted these errors. The court held that the affidavit was not credible and could...
Source-derived case information.
- Citation
- [2008] KECA 151 (KLR)
- Parties
- Applicant: John Kimani Njoroge; Respondent: Serah Njeri Mwobi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 160 of 2007
- Procedural Posture
- Civil Appeal / Application to Strike Out Notice of Appeal and Appeal
- Outcome
- application allowed; notice of appeal and appeal struck out
- Judges
- PK Tunoi, AM Githinji, CA Otieno
- Legal Topics
- Service of Notice, Appeal Striking Out, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kimani Njoroge
Applicant
Serah Njeri Mwobi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Notice of Appeal and Appeal
Legal Issues
- 1 Whether the notice of appeal was served on the respondent within the time prescribed by the Court of Appeal Rules.
- 2 Whether the affidavit of service relied upon by the respondent was credible and valid evidence of timely service.
Ratio Decidendi
The court found that the affidavit of service relied upon by the respondent was manifestly false, as it contained erroneous details regarding the court, the appeal number, and the date of swearing. The respondent's counsel candidly admitted these errors. The court held that the affidavit was not credible and could not be relied upon to prove timely service of the notice of appeal. In the absence of credible evidence of timely service, the court concluded that the notice of appeal was served out of time, in contravention of rule 76(1) of the Court of Appeal Rules. Consequently, the application to strike out the notice of appeal and the appeal itself was allowed.
Court Disposition
application allowed; notice of appeal and appeal struck out
Orders
- The Notice of Appeal dated 15th February, 2007 is struck out.
- Civil Appeal No. 160 of 2007 is struck out.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Civil Appeal (Appli.) 160 of 2007
JOHN KIMANI NJOROGE …...……………APPLICANT/RESPONDENT
AND
SERAH NJERI MWOBI appealing
in her Capacity as the Administrator of the Estate of the late
JOHN MUGAI MWOBI…………………… RESPONDENT/APPELLANT
(Application to strike out Civil Appeal No. 160 of 2007 being an appeal from a ruling and orders of the High Court of Kenya at Mombasa (Khaminwa, J) dated 8th February, 2007
in
H.C.C.C No. 90 of 1999)
*******************
RULING OF THE COURT
This is an application expressly brought under rule 80 of the Rules of this Court to strike out the notice of appeal dated 15th February, 2007, and consequently; Civil Appeal No. 160 of 2007 on the ground that the notice of appeal was served on the respondent out of time.
The decision the subject matter of the appeal was delivered on 8th February, 2007. The respondent, Serah Njeri Mwobi, being aggrieved, timeously filed a notice of appeal on 15th February, 2007. It is the contention of Mr. Mabeya, for the applicant, Mr. John Kimani Njoroge, and the respondent in Civil Appeal No. 160 of 2007, that his firm was served on 7th March, 2007, outside the period limited by rule 76(1) of the Rules of this Court. To buttress his contention, Mr. Mabeya has annexed to the motion the notice of appeal with an endorsement acknowledging service on the even date.
However, Mr. Odhiambo, for the respondent, opposes the application on the ground that his process server, Mr. Peter Kahinga, did effect service on the firm of Messrs Hezron Gekonde & Co. Advocates, who previously acted for the applicant, on 16th February, 2007, but, the
said Advocates who though accepted service declined to sign and stamp at the back of Mr. Kahinga’s copy of the notice of appeal. But, Mr. Mabeya has vehemently attacked the credibility of the affidavit of Mr. Kahinga. He has termed it entirely false.
Our close scrutiny of the said affidavit shows that it is headed “Court of Appeal” and refers to Civil Appeal No. 16 of 2007. It further shows that it was sworn on 20th February, 2007 and yet the appeal sought to be struck out was filed on 9th July, 2007. Thus, it is manifestly plain that the said affidavit was not deponed to on the date shown on it.
It has been candidly acknowledged by Mr. Odhiambo from the bar that the affidavit is erroneous on the face of it, especially in that it was not sworn on 20th February, 2007 and “the Court” shown therein and the number of the appeal are entirely false.
We have no hesitation whatsoever in holding that the affidavit deponed to by Mr. Peter Kahinga is false and we accordingly reject it. We strongly deplore any attempt to try to lodge false document before this Court.
It must follow, therefore, that in the circumstances, the application cannot be resisted by means of the falsified affidavit.
In the result, the application is allowed as prayed. The Notice of Appeal dated 15th February, 2007 is hereby ordered struck out and, consequently, Civil Appeal No. 160 of 2007 is also ordered struck out. The applicant shall have the costs of the Notice of Motion and the struck out appeal. These shall be our orders.
Dated and delivered at Mombasa this 25th day of July, 2008.
P.K. TUNOI
…………………………
JUDGE OF APPEAL
E.M. GITHINJI
……………………………
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR