[2024] KECA 1520 (KLR)
The Court found that the notice of appeal was filed within the statutory period of 14 days and that payment for the notice and request for typed proceedings was made within time. The memorandum of appeal clearly stated the grounds being appealed against, and the respondent had already filed the substantive appeal....
Source-derived case information.
- Citation
- [2024] KECA 1520 (KLR)
- Parties
- Applicant: Olonana Limited; Respondent: Rafiki Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application E094 of 2023
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application dismissed
- Judges
- MA Warsame, PM Gachoka, WK Korir
- Legal Topics
- Notice of Appeal, Procedural Defects, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olonana Limited
Applicant
Rafiki Limited
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the respondent's notice of appeal was incurably defective for lack of date, seal, or signature by the Deputy Registrar contrary to Rule 77 of the Court of Appeal Rules.
- 2 Whether failure to specify the part of the judgment being appealed against rendered the notice of appeal incompetent.
- 3 Whether the notice of appeal was filed and served within the statutory period.
Ratio Decidendi
The Court found that the notice of appeal was filed within the statutory period of 14 days and that payment for the notice and request for typed proceedings was made within time. The memorandum of appeal clearly stated the grounds being appealed against, and the respondent had already filed the substantive appeal. The Court held that the applicant's complaints regarding the lack of date, seal, or signature by the Deputy Registrar, and the alleged failure to specify the part of the judgment appealed against, were not sufficient to render the notice of appeal incompetent. The Court emphasized that the grounds of appeal were clear, precise, and addressed the grievances of the appellant....
Court Disposition
application dismissed
Orders
- The application to strike out the notice of appeal is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Olonana Limited v Rafiki Limited (Civil Application E094 of 2023) [2024] KECA 1520 (KLR) (25 October 2024) (Ruling)
Neutral citation: [2024] KECA 1520 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Civil Application E094 of 2023
MA Warsame, PM Gachoka & WK Korir, JJA
October 25, 2024
Between
Olonana Limited
Applicant
and
Rafiki Limited
Respondent
(An appli cati on seeki ng to stri ke out a notice of appeal agai nst the j udg ment of t he Envi ronment and l and Court at Kil gori s (Was he, J.) dat ed 20th Sept e mber 2023 in ELC Cause No. 34 of 2021)
Ruling
1. The appli cant has fil ed a noti ce of moti on dat ed 31st Oct ober, 2023 seeki ng to stri ke out t he responde nt’ s Noti ce of Appeal fil ed on 26th Sept e mber, 2024 and served on 2nd Oct ober, 2023.
2. The grounds i n support of t he Noti ce of Moti on as st at ed on t he f ace of t he appli cati on and deponed i n t he supporti ng affi davi t of Wai r ui Wai ganj o, a Fi nance Di rect or wi t h t he appli cant are t hat:a.Judg me nt was delivered on 20th Sept e mber, 2023 i n f avour of t he appli cant entitli ng hi mto qui et and excl usi ve possessi on of 20 acres wi t hi n the sui t propert y i n li ne wi t h t he l ease agree me nt dat ed 30th March, 2018b.Eve n t hough t he noti ce of appeal was fil ed on ti me, it i s i ncur abl y def ecti ve and cannot be a me nded because firstly; t he noti ce of appeal whi ch was sent vi a e mail i s nei t her dat ed, seal ed or si gned by t he Deput y Regi strar contrary to Rul e 77( 1) and ( 2) of t he Cour t of Appeal Rul es hence t here i s no proof it was l odged or recei ved by t he Deput y Regi strar. Secondl y, t he responde nt has not specifi ed whi ch part of t he appeal it i ntends to appeal contrary to Rul e 77 ( 3) of t he COA Rul es 2022.
3. I n opposi ti on to t he appli cati on, t he responde nt has fil ed a Repl yi ng Af fi davi t dat ed 16th Nove mber, 2023 s wor n by its direct or Uwe Her dees, who deponed t hat:a.The court assessed t he noti ce of appeal and request f or typed pr oceedi ngs vi a an e mail sent on 27th Sept e mber, 2023 and sent t he pay me nt det ail s to its advocat es. Its advocat es pai d vi a M- pesa, sent proof of pay me nt to t he court and t he court sent back t he docu me nt s on 2nd October, 2023 vi a mail and dee me d t he m as dul y fil ed.b.The responde nt’ s advocat es i mme di atel y served t he appl i cant wi t h t he noti ce of appeal on t he sa me dat e but l at er requested t he court f or t he requi site recei pt s and t he dul y recei ved docu me nt s f or admi ni strati ve pur poses and t he court sent back st a mpe d docu me nt s on 4t h Oct ober 2023c.The appli cati on i s i n bad f ait h and the responde nt i s keen to pur sue its appeal
4. Whe n t he matt er ca me up bef ore us, t he appli cant was represent ed by l ear ned counsel Mr. Kere whil e lear ned counsel, Mr. Ki pkoech appeared f or t he responde nt.
5. I n a bri ef hi ghli ght , Mr. Ki pkoech ad mitted t hat at t he ti me of servi ng t he noti ce recei ved fro mt he regi stry, it had not recei ved the endorsed noti ce ho wever he e mphasi sed t hat the responde nt has al ready fil ed its appeal bef ore t hi s court seri ali sed as Ci vil Appeal No. 23 of 2024. He cont ended t hat t he noti ce of appeal was fil ed on time and t he grounds of appeal are st at ed i n t hei r Me mor andum of Appeal. On hi s part Mr. Kere mai nt ai ned t hat t he applicati on was meri ted and t hat an appeal l odged usi ng a f aul ty notice of appeal was inco mpet ent and had no l egs to st and on.
6. We have consi dered t he appli cati on, sub mi ssi ons made on behalf of t he respecti ve parti es and t he l aw. We have al so l ooked at t he annexed Noti ce of Appeal, whi ch i s subj ect of t he appli cati on f or our deter mi nati on. It is cl ear t he Noti ce of Appeal was fil ed wi t hi n t he st at ut ory peri od of 14 days, whi ch was to expi re on 4th Oct ober,C 2023. Secondl y, the pay me nt recei pt annext ed by t he responde nt sho ws t hat t he Not ice of Appeal, together wi t h t he l etter requesti ng f or typed proceedi ngs were pai d f or on 29th Sept e mber, 2023.
7. It i s cl ear beyond doubt t hat t he appeal agai nst t he i mpug ned Judg me nt was fil ed wi t h a Me mor andum of Appeal, whi ch cl earl y and correctl y st ates t he grounds bei ng appeal ed agai nst by t he responde nt. We don’ t underst and what t he appli cant i s co mpl ai ni ng about, as t he grounds of appeal are clear, preci se and to t he poi nt of gri evance by t he appell ant. Conseque ntl y, t he appli cati on has no meri t and it’ s di s mi ssed wi t h no or ders as to cost s.
DAT ED AND DELI VERED AT NAKUR U T HI S 25T H DAY OF OCT OBER 2024. M. WARSAME........................................…JUDGE OF APPEALM. GACHOKA CI ARB., FCI ARB........................................…JUDGE OF APPEALW. KORIR........................................…JUDGE OF APPEALI certif yt hat t hi s i s a tr ue copy of t he origi nal.SignedDEPUTY REGISTRARPage 1of 4