[2022] KECA 503 (KLR)
The Court found that the respondents, despite being granted an extension of 14 days to serve the notice of appeal, failed to do so within the stipulated period. There was no response or explanation from the respondents. The failure to serve the notice of appeal within the extended time constituted a failure to take...
Source-derived case information.
- Citation
- [2022] KECA 503 (KLR)
- Parties
- Applicant: Maurice Anthony Wanjala Muse; Respondent: John Simiyu Wepukhulu; Respondent: Issac Wafula Wanakach; Respondent: Omoto David alias Omoto Philip; Respondent: Solomon Wanyonyi Khaemba; Respondent: Abraham Change Wekesa; Respondent: Penana Mtonyi; Respondent: Mary Ambogo; Respondent: Nelly Sikhoya Balanga; Respondent: Anne Nekesa Wekesa; Respondent: Jotham Simita; Respondent: Wycliffe Airo Sirikwa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 111 of 2020
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application granted; notice of appeal struck out with costs to the applicant
- Judges
- PO Kiage, M Ngugi, F Tuiyott
- Legal Topics
- Appeal Procedure, Service of Process, Extension of Time, Striking Out, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Anthony Wanjala Muse
Applicant
John Simiyu Wepukhulu
Respondent
Issac Wafula Wanakach
Respondent
Omoto David alias Omoto Philip
Respondent
Solomon Wanyonyi Khaemba
Respondent
Abraham Change Wekesa
Respondent
Penana Mtonyi
Respondent
Mary Ambogo
Respondent
Nelly Sikhoya Balanga
Respondent
Anne Nekesa Wekesa
Respondent
Jotham Simita
Respondent
Wycliffe Airo Sirikwa
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondents served the notice of appeal within the time stipulated by the Court and the Rules.
- 2 Whether failure to serve the notice of appeal within the extended period renders the notice incompetent and liable to be struck out.
Ratio Decidendi
The Court found that the respondents, despite being granted an extension of 14 days to serve the notice of appeal, failed to do so within the stipulated period. There was no response or explanation from the respondents. The failure to serve the notice of appeal within the extended time constituted a failure to take an essential step as required by Rule 84 of the Court of Appeal Rules. Consequently, the notice of appeal was rendered incompetent and was struck out. The applicant was awarded the costs of the motion.
Court Disposition
application granted; notice of appeal struck out with costs to the applicant
Orders
- The notice of appeal dated 11th August 2020 is struck out.
- The applicant shall have the costs of the motion.
Full Case Text
Judgment text and source record
42 paragraphs
Muse v Wepukhulu & 10 others (Civil Application 111 of 2020) [2022] KECA 503 (KLR) (28 April 2022) (Ruling)
Neutral citation: [2022] KECA 503 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application 111 of 2020
PO Kiage, M Ngugi & F Tuiyott, JJA
April 28, 2022
Between
Maurice Anthony Wanjala Muse
Applicant
and
John Simiyu Wepukhulu
1st Respondent
Issac Wafula Wanakach
2nd Respondent
Omoto David alias Omoto Philip
3rd Respondent
Solomon Wanyonyi Khaemba
4th Respondent
Abraham Change Wekesa
5th Respondent
Penana Mtonyi
6th Respondent
Mary Ambogo
7th Respondent
Nelly Sikhoya Balanga
8th Respondent
Anne Nekesa Wekesa
9th Respondent
Jotham Simita
10th Respondent
Wycliffe Airo Sirikwa
11th Respondent
(Being an application to strike out the notice of appeal in the Environment & Land Court at Kitale dated 11th August, 2020 in Case No. 17 of 2011)
Ruling
1. By the motion on notice dated 16th September 2020, brought under Rule 84 of the Rules of Court, the applicant prays that the notice of appeal dated 11th August 2020 and served on 9th September 2020 be struck out for having been served contrary to the orders of this Court made on 7th August 2020 and Rule 77(1) of the Court of Appeal Rules.
2. The grounds on the face of the motion state that the respondents had on application been granted 14 days from 7th August 2020 within which to serve the notice of appeal, but they did so on 9th September 2020, which was way after the stipulated time. The applicant’s supporting affidavit sworn on 16th September 2020 makes the same assertions on oath. There has been no replying affidavit or any answer to the application. Indeed, the respondents’ advocates were absent when the motion came up for hearing on 14th December 2021 even though they were duly served on 7th December 2021 with notice of the hearing. They also did not file submissions as directed.
3. Given the uncontroverted evidence that the respondents, despite being granted reprieve by Nambuye, J.A who extended time for them to file their notice of appeal, neglected or failed to serve the same within the days given, the application before us is unanswerable. The failure to serve the notice of appeal within the time given was a failure to take an essential step within the meaning and intendment of Rule 84.
4. In addition, the late service constitutes a default of a condition given by the Court for the validation of the notice of appeal, leaving it incompetent.
5. In the result, the motion is granted and the notice of appeal dated 11th August 2020 be and is hereby struck out with costs.
6. The applicant shall have the costs of the motion.
DATED AND DELIVERED AT KISUMU THIS 28THDAY OF APRIL, 2022. P. O. KIAGE..........................JUDGE OF APPEALMUMBI NGUGI..........................JUDGE OF APPEALF. TUIYOTT..........................JUDGE OF APEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR