[2021] KECA 463 (KLR)
The Court found that the notice of appeal filed by the applicant was not served on the respondents as required by Rule 77(1) of the Court of Appeal Rules. There was no contestation or opposition to this fact, and the respondent did not respond to the application or the hearing notice. The failure to serve the notice...
Source-derived case information.
- Citation
- [2021] KECA 463 (KLR)
- Parties
- Applicant: Nancy Wairimu Kibui; Respondent: Peter Wachira Njoroge; Respondent: Michael Gachiri Njoroge; Respondent: James Wachira Wambugu; Respondent: Juliud Kirutu Gachiri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 18 of 2017
- Procedural Posture
- Civil Application / Application for Striking Out Notice of Appeal
- Outcome
- application allowed
- Judges
- J Karanja, AK Murgor
- Legal Topics
- Service of Process, Notice of Appeal, Court of Appeal Rules, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wairimu Kibui
Applicant
Peter Wachira Njoroge
Respondent
Michael Gachiri Njoroge
Respondent
James Wachira Wambugu
Respondent
Juliud Kirutu Gachiri
Respondent
Procedural Posture
Civil Application / Application for Striking Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was served on the respondents as required by Rule 77(1) of the Court of Appeal Rules.
- 2 Whether failure to serve the notice of appeal warrants striking out the notice of appeal.
Ratio Decidendi
The Court found that the notice of appeal filed by the applicant was not served on the respondents as required by Rule 77(1) of the Court of Appeal Rules. There was no contestation or opposition to this fact, and the respondent did not respond to the application or the hearing notice. The failure to serve the notice of appeal is a fundamental procedural defect that goes to the root of the appellate process. The rules of the Court are mandatory, and compliance is essential for the proper administration of justice. The Court therefore held that the application to strike out the notice of appeal was merited and allowed it with costs to the applicant/respondents in the appeal.
Court Disposition
application allowed
Orders
- The application to strike out the notice of appeal is allowed.
- Costs awarded to the applicant/respondents in the appeal.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: KARANJA, ASIKE-MAKHANDIA & MURGOR, JJ.A.)
CIVIL APPLICATION NO. 18 OF 2017
BETWEEN
NANCY WAIRIMU KIBUI................................................................APPLICANT
AND
PETER WACHIRA NJOROGE............................................1STRESPONDENT
MICHAEL GACHIRI NJOROGE.......................................2NDRESPONDENT
JAMES WACHIRA WAMBUGU.........................................3RDRESPONDENT
JULIUD KIRUTU GACHIRI...............................................4THRESPONDENT
(An Application for striking out notice of appeal dated 29thMarch, 2016 from the Judgment of the High Court of Kenya at Nyeri (A. Ombwayo, J.) dated 23rdMarch, 2016
in
ELC No. 141 of 2008)
**********************
RULING OF THE COURT
Nancy Wairimu Kibui was the defendant in Nyeri HCCC No. 141 of 2008 whereby she had been sued by the four plaintiffs who are the respondents in the appeal. Having lost the suit, she filed a Notice of Appeal before this Court’s registry at Nyeri on 1st April, 2016. Apparently, the said notice was not served on the respondents in the appeal as required under Rule 77(1) of the Rules of this Court.
According to Kelvin Mogeni learned counsel for the respondents, he was served by a notice to attend a case management conference dated 23rd January, 2017 by the Deputy Registrar of this Court on 25th January, 2017. Upon receipt of the notice, he dispatched his clerk to the court registry and that is when they discovered that the appellant had actually filed an appeal but they had never been served with the notice of appeal as commanded by the Rules of this Court.
Those are the circumstances that prompted Mr. Mogeni on behalf of the respondents to file the Notice of motion dated 23rd February, 2021 seeking the striking out/dismissal of the Notice of appeal for failure to serve the same on the respondents pursuant to Rule 77(1) of the Court of Appeal Rules.
In his affidavit in support of the application sworn on even date, Mr. Mogeni repeats the background leading to the filing of the application as outlined above. There is no response to the application from the respondent. There is also no response to the hearing notice from this Court which was served on counsel on record for the appellant (respondent herein) on 20th May, 2021. The application is in the circumstances not opposed. There is therefore, no contestation that the notice of appeal was not served as required under Rule 77(1) of the Court of Appeal Rules.
Accordingly, we find the application before us merited. We allow it with costs to the applicant/respondents in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2021.
W. KARANJA
.......................................
JUDGE OF APPEAL
ASIKE-MAKHANDIA
........................................
JUDGE OF APPEAL
A.K. MURGOR
......................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR