[2023] KECA 797 (KLR)

Kuria & 19 others v Nyota (Civil Application 11 of 2019) [2023] KECA 797 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KECA 797 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Civil Application 11 of 2019

F Sichale, FA Ochieng & LA Achode, JJA

June 30, 2023

Between

Eddy Kuria

1st Applicant

Christopher M. Kamau

2nd Applicant

Margaret Wanjiru

3rd Applicant

David Adams Mbugua

4th Applicant

David Mburu Githere

5th Applicant

W.K Kibet

6th Applicant

Catherine Koskei

7th Applicant

Beatrice Wangari

8th Applicant

Augustine Lomongin

9th Applicant

Jacquelin Adhiambo

10th Applicant

Stephen Njoroge Kanyora

11th Applicant

Mohammed Osman Hassan

12th Applicant

Gladys Wairimu Gichanga

13th Applicant

Emmanuel Njau

14th Applicant

Jane Chaku Ndiga

15th Applicant

Susan K. Chesiale

16th Applicant

Everlyn Nyambura

17th Applicant

S.K Kosgey

18th Applicant

Agnes Wanjiku Kariungi

19th Applicant

Leah Njeri Karanja

20th Applicant

and

Harrison Mwangi Nyota

Respondent

(Being an application to strike out a Notice of Appeal dated 24th December 2018, against an intended appeal of the decision of Wendoh J dated 20th December 2018) IN (Nakuru HCCC No. 110 OF 1998 Civil Case 110 of 1998 )

Ruling

1. The applicants herein have vide a motion dated March 7, 2019, brought pursuant to the provisions of section 3A of the Appellate Jurisdiction Act cap 9 of the Laws of Kenya, rules 42, 43, 77 and 84 of the Court of Appeal Rules2010, moved the court to strike out the notice of appeal dated and filed on December 24, 2018, for want of service upon the applicants.

2. The motion is supported on the grounds on the face of the motion and an affidavit sworn by Kahiga Waitindi, learned counsel who has the conduct of this matter on behalf of the applicants. He deponed inter alia, that the judgment intended to be appealed against was delivered by Wendoh, J. on December 20, 2018and that the impugned notice of appeal was lodged in the High Court on December 24, 2018; that to date, the applicants have never been served with the said Notice of Appeal and that they were not even aware that the respondent had preferred an appeal against the decision delivered on December 20, 2018.

3. He further deposed that the applicants only became aware that the respondent had preferred an appeal and filed Notice of Appeal when the firm was served with an application for stay of execution dated January 18, 2019, on February 24, 2019.

4. When the matter came up before us for plenary hearing on March 27, 2023, Mr. Karanja learned counsel appeared for the applicants. There was no appearance on part of the respondent despite the parties having been served with the hearing notice on March 1, 2023 at 2:19 PM. Mr. Karanja further intimated to court that he had served the respondent with the application on March 14, 2019, but there had been no response. According to him, the applicants’ motion therefore was not opposed. None of the parties filed written submissions.

5. We have carefully looked at the applicants’ motion, the grounds thereof,the supporting affidavit and the law. We have perused the impugned notice of appeal dated and lodged in the court on December 24, 2018and there is no evidence on record to show that the same was ever served upon the respondent as provided under rule 77 (1) of the Court of Appeal2010 which provides:77(1)“An intended appellant shall, before or within seven days after lodging the notice of appeal, serve copies thereof on all persons directly affected by the appeal.”

6. It is instructive to note that the above Rule is couched in mandatory terms.Additionally, 5 years down the line no appeal has ever been filed by the respondent to date.

7. Faced with a similar situation in the case of Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others[2016] eKLR, this Court stated as follows:“Whichever way, one looks at it, there was no service of the Notice of Appeal on the applicant. The purpose of service of a Notice of Appeal is to alert the parties being served that the case in question has not been concluded yet as the same has been escalated to another level. This enables the party to prepare and get ready for another fight, be it by way of gathering resources or just getting mentally prepared for defending the intended appeal. Failure to serve a party with a Notice of Appeal within the time prescribed by law gives a party false belief that the matter has been concluded, only to be ambushed later with the record of appeal in which the said notice is tucked away somewhere in the record. That occasions prejudice to the ambushed party, and it is in our view a habit that should not be countenanced in any fair and just process. That would explain why rule 77(1) of the Court of Appeal Rules is couched in mandatory terms.”

8. We fully associate ourselves with the above position and reiterate the same. In view of the circumstances in this case, we have no hesitation to strike out the notice of appeal dated December 24, 2018, which we hereby do. Accordingly, the notice of appeal dated December 24, 2018, is hereby struck out with costs to the applicants.It is so ordered.

DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE, 2023. F. SICHALE..................................JUDGE OF APPEALF. OCHIENG..................................JUDGE OF APPEALL. ACHODE..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR