[2008] KECA 219 (KLR)
The Court found that the record of appeal was served one day late, in breach of rule 76(1) of the Court of Appeal Rules, and that no court order had sanctioned the delay. Furthermore, Quickline Auctioneers, being a party directly affected by the appeal, was not served with the notice of appeal, and the appellants...
Source-derived case information.
- Citation
- [2008] KECA 219 (KLR)
- Parties
- Applicant: Morris Thuranira; Respondent: M’Ibiri Mbogori; Respondent: Justus Muruga M’Ikiugu; Respondent: National Bank of Kenya; Respondent: Ndiungi Agencies Auctioneers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 305 of 2006
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- application allowed; appeal struck out with costs to respondents
- Judges
- PK Tunoi, CA Otieno
- Legal Topics
- Appeal Striking Out, Service of Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Thuranira
Applicant
M’Ibiri Mbogori
Respondent
Justus Muruga M’Ikiugu
Respondent
National Bank of Kenya
Respondent
Ndiungi Agencies Auctioneers
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the record of appeal was served outside the time stipulated by the Court of Appeal Rules.
- 2 Whether failure to serve Quickline Auctioneers, a directly affected party, with the notice of appeal invalidates the appeal.
Ratio Decidendi
The Court found that the record of appeal was served one day late, in breach of rule 76(1) of the Court of Appeal Rules, and that no court order had sanctioned the delay. Furthermore, Quickline Auctioneers, being a party directly affected by the appeal, was not served with the notice of appeal, and the appellants had not sought an order dispensing with such service as provided for in the Rules. The Court held that compliance with procedural rules is mandatory and that failure to serve all directly affected parties or to seek the court's leave to dispense with such service is a fatal defect. Consequently, the appeal was struck out for non-compliance with the mandatory provisions of the Rules.
Court Disposition
application allowed; appeal struck out with costs to respondents
Orders
- Civil Appeal No. 305 of 2006 is struck out with costs to the respondents.
- The applicant shall have the costs of this application.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL OF KENYA AT NYERI Civil Appeal (Appli) 305 of 2006
MORRIS THURANIRA ……………………………..................…..APPLICANT
AND
1. M’IBIRI MBOGORI
2. JUSTUS MURUGA M’IKIUGU
3. NATIONAL BANK OF KENYA
4. NDIUNGI AGENCIES AUCTIONEERS ………………..RESPONDENTS
(An application to strike out the notice and record of appeal from the ruling of the High Court of Kenya at Meru (Lenaola, J) dated 12th October, 2006
in
H.C.C.C. NO. 26 OF 2005)
*************
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules (the Rules) for an order to strike out the appeal on two grounds. First, that the record of appeal was served outside the time stipulated by the Rules; and secondly, that Quickline Auctioneers, a party directly affected by the appeal was not served with the notice of appeal in breach of the mandatory provisions of rule 76(1) of the Rules. It is worthy of note that Quickline Auctioneers was the 2nd defendant in Meru CMCC No. 170 of 2006 which was later consolidated with Meru H.C. Misc. No. 83 of 2006 to constitute Meru HCCC No. 26 of 2005 the subject of this appeal.
It is common ground that this appeal was filed on 6th December, 2006 and was served on the 3rd respondent herein on 14th December, 2006, one day outside the seven day period limited by rule 76(1) aforesaid. The delay, though one day, has not been sanctioned by the Court and it must follow therefore that the application on this ground cannot be resisted.
Dr. Khaminwa for the appellants readily admits that the notice of appeal and the record of appeal have not been served on Quickline Auctioneersbut avers that the matters in issue in the appeal did not concern them, and moreover; the two courts below had not made any orders against Quickline Auctioneers and they were parties who were not necessary in the appeal. Dr. Khaminwa also complained that the applicant had acted out of desperation in filing this application because the appeal had not been expeditiously disposed of.
Though it may be correct to assert that Quickline Auctioneers’role in the appeal is minimal, nevertheless, they are a party which will be directly affected by the results of the appeal. Moreover, if the appellants wished to exclude them, the Rules provide for a way out. The appellants could, if they wished, apply to the Court for an order directing that service need not be effected on them. The proviso to rule 76 of the Rules refers.
In their omission to serve the applicant and there being no order to sanction it, the appellants will have acted in breach of rule 76(1).
This Court is anxious that matters before it should be disposed of expeditiously. But, this does not grant a generous leave to the litigants to act in blatant breach of the Rules, which in our view, serve as a faithful handmaid of justice.
We allow this application. In the result, Civil Appeal No. 305 of 2006 is hereby ordered struck out with costs to the respondents. The applicant shall also have the costs of this application.
Dated and delivered at NYERI this 23rd day of May, 2008.
P. K. TUNOI
……………………..
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR