[1998] KECA 165 (KLR)
The appeal was struck out because the appellant failed to personally serve the notice of appeal on the respondents as required by Rule 17(1) of the Court of Appeal Rules, and the record of appeal was filed out of time without the benefit of the proviso to Rule 81(1), since the necessary letter was not served within...
Source-derived case information.
- Citation
- [1998] KECA 165 (KLR)
- Parties
- Appellant: Joseph Ngwele Nduswa; Respondent: Ahmed Abubakar t/a Bajaber Service Station; Respondent: Shadrack Kasoa Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 287 of 1997
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out for failure to comply with mandatory procedural requirements.
- Judges
- JE Gicheru
- Legal Topics
- Service of Notice, Time Limits for Appeal, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ngwele Nduswa
Appellant
Ahmed Abubakar t/a Bajaber Service Station
Respondent
Shadrack Kasoa Mwangi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the notice of appeal was properly served on the respondents as required by the rules of court.
- 2 Whether the record of appeal was filed within the prescribed time limits under the rules of court.
- 3 Whether failure to take essential procedural steps warrants striking out the appeal.
Ratio Decidendi
The appeal was struck out because the appellant failed to personally serve the notice of appeal on the respondents as required by Rule 17(1) of the Court of Appeal Rules, and the record of appeal was filed out of time without the benefit of the proviso to Rule 81(1), since the necessary letter was not served within 30 days. No application for alternative service or extension of time was pending that could cure these defects. The failure to take these essential procedural steps was fatal to the appeal.
Court Disposition
Appeal struck out for failure to comply with mandatory procedural requirements.
Orders
- The appeal is struck out.
- The applicant is awarded costs of the application and the appeal.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: GICHERU, AKIWUMI & SHAH, JJ.A.)
CIVIL APPEAL NO.287 OF 1997
BETWEEN
JOSEPH NGWELE NDUSWA. ………………………………........…APPEALANT
AND
AHMED ABUBAKAR T/A BAJABER SERVICE STATION………RESPONDENT
SHADRACK KASOA MWANGI ………………………….......……RESPONDENT
(Being an Appeal from the judgment of the High Court of Kenya at Nairobi (Justice J.V. Juma Dated on 11th day of June, 1997
In
Civil suit no.3009 of 1989)
RULING OF THE COURT:
We have before us a two- pronged application for striking out this appeal. The first limb of the application is that no notice of appeal was properly served, or at all on the respondent. The second limb of application is to the effect that the record of appeal as filed was filed out of time, as the appellant does not have the benefit of the proviso to rule 81(1) of the rules of this court.
The respondent to this application concedes that the notice of appeal was never personally served on the respondent to the appeal and that it was only sent by ordinary mail to be received by the respondent on 1st September 1997. Rule 17(1) of the rules of this court mandates a personal service of such a document as the notice of appeal, unless otherwise directed and we are told no such directions have been or are sought. The effective position therefore, is that to date there has been no effective service of the notice of appeal with the result that an essential step in the proceedings has not been taken.
As regards the filing of the appeal itself in the absence of a copy of the letter bespeaking copies of proceedings and judgment not having been sent to the respondent to appeal within 30 days, the benefit of the proviso to rule 81(1) does not enure to the appellant. The record of appeal is also therefore filed out of time without leave.
We are told from the bar that there was an application filed in this court by the appellant for extension of time to serve the notice of appeal and that application stands dismissed but there is a reference to full court pending against that decision. The reference even if successful would not help the appellant as (we are so told)there is no application for directions to serve otherwise than in the mode prescribed by rule 17(1) of the rules of this court.
The upshot of all this is that an essential step not having been taken the appeal is ordered struck out. The applicant (respondent to the appeal) will have costs of application and the costs of the appeal) will have costs of the application and costs of the appeal.
Dated and delivered at Nairobi this 18th day of March 1998.
J.E. GICHERU
JUDGE OF APPEAL
A.M.AKIWUMI
JUDGE OF APPEAL
A.B.SHAH
JUDGE OF APPEAL
I certify that this is a
True copy of the original.
DEPUTY REGISTRAR