[2021] KECA 571 (KLR)
The Court found that the respondent failed to serve the notice of appeal within the mandatory seven-day period as required by rule 77(1) of the Court of Appeal Rules. Additionally, the respondent did not serve the letter requesting for proceedings on the applicant, and the record of appeal was served on the...
Source-derived case information.
- Citation
- [2021] KECA 571 (KLR)
- Parties
- Applicant: Joseph Santian; Respondent: Chemoiwa Ole Sayialel
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 16 of 2019
- Procedural Posture
- Civil Application / Application to Strike Out Record of Appeal
- Outcome
- Application allowed. Record of appeal struck out. Costs to the applicant.
- Judges
- DK Musinga, AK Murgor
- Legal Topics
- Service of Notice, Record of Appeal Timelines, Change of Advocates, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Santian
Applicant
Chemoiwa Ole Sayialel
Respondent
Procedural Posture
Civil Application / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the respondent served the notice of appeal within the prescribed period as required by the Court of Appeal Rules.
- 2 Whether the record of appeal was served on the correct advocates for the applicant.
- 3 Whether the record of appeal was filed within the statutory period and whether the exclusion of time for proceedings was available to the respondent.
Ratio Decidendi
The Court found that the respondent failed to serve the notice of appeal within the mandatory seven-day period as required by rule 77(1) of the Court of Appeal Rules. Additionally, the respondent did not serve the letter requesting for proceedings on the applicant, and the record of appeal was served on the applicant's former advocates despite a notice of change of advocates. The record of appeal was also filed outside the prescribed sixty-day period, and the respondent could not benefit from the exclusion of time for proceedings since the letter requesting proceedings was not served. These procedural breaches were not contested by the respondent, and the cumulative effect rendered the...
Court Disposition
Application allowed. Record of appeal struck out. Costs to the applicant.
Orders
- The record of appeal filed on 10th January 2019 in Civil Appeal No. 1 of 2019 is struck out.
- The respondent shall bear the costs of the application.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: OUKO (P), MUSINGA, & MURGOR, JJ.A.)
CIVIL APPLICATION NO. 16 OF 2019
BETWEEN
JOSEPH SANTIAN.................................................APPLICANT
AND
CHEMOIWA OLE SAYIALEL.........................RESPONDENT
(An application for to strike out the Record of Appeal filed on
10th January 2019 in Civil Appeal No. 1 of 2019 in respect of the
Order of the High Court at Narok (M. N. Kullow, J.) delivered on 27th
September 2018inE.L.C Cause No. 323 of 2017formerly Kisii E.L.C. No. 103 of 2014. )
*****************
RULING OF THE COURT
1. The applicants’ Notice of Motion dated 13th February 2019 seeks the striking out of the record of appeal filed by the respondent on 10th January 2019 in Civil Appeal No. 1 of 2019. The respondent, being dissatisfied with the decision ofKullow, J.delivered on 27th September 2018, filed a notice of appeal on 12th October 2018. He subsequently filed the record of appeal on 10th January 2019 and served it on 14th January 2019.
2. The applicant stated in his affidavit in support of the application that the notice of appeal was never served, contrary to rule 77 of this Court’s Rules which requires that the notice be served within 7 days after filing.
3. That is not all. The respondent did not serve upon the applicant the letter requesting for proceedings; and the impugned record of appeal was served upon the applicant’s former advocates, Kiplenge and Kurgat, although the applicant had filed a notice of change of advocates and brought on board M/s Leona Morintat Advocatesin place of M/s Kiplenge & Kurgat Advocates.
4. Although the respondent’s Advocates, Ochengo-Onduso & Company, were served with a hearing notice on 25th February 2021 and directed to file written submissions within seven (7) days because the application would be disposed of in that mode in view of the Covid-19 restrictions, the respondent did not comply. Consequently, this application is not contested.
5. Rule 77(1)of thisCourt’s Rulesrequires that a notice of appeal be served within seven days from the date of its filing. In this application the notice of appeal was not served at all, the applicant stated, and that averment has not been controverted. The record of appeal was also wrongly served.
6. Under rule 82(1) a record of appeal ought to be filed within sixty (60) days of the date of lodging the notice of appeal. But where an application for a copy of the proceedings has been made within thirty (30) days of the date of the impugned decision and a copy of the letter bespeaking the proceedings has been served upon the respondent, such time as was required for the preparation of the proceedings may be excluded in the computation of time.
7. In this application, the record of appeal was filed outside the sixty days’ period and the respondent had never been served with a copy of the letter requesting for the proceedings.
8. For all these reasons, we allow the application, with the consequence that the record of appeal filed on 10th January 2019 in Civil Appeal No. 1 of 2019 is hereby struck out. The respondent shall bear the costs of the application.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2021.
W. OUKO, (P)
..................................
JUDGE OF APPEAL
D. K. MUSINGA
...................................
JUDGE OF APPEAL
A.K. MURGOR
...................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR