[2020] KECA 769 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: NAMBUYE, M’INOTI AND KANTAI, JJA]

CIVIL APPLICATION NO. 51 OF 2019

BETWEEN

THE PARLIAMENTARY SERVICE COMMISSION.........................APPLICANT

AND

THE SALARIES AND RENUMERATION COMMISSION ......1STRESPONDENT

ATTORNEY GENERAL ...............................................................2NDRESPONDENT

LAW SOCIETY OF KENYA .......................................................3RDRESPONDENT

HONOURABLE BENSON MUTURA ........................................4THRESPONDENT

OKIYA OMTATA OKOITI ...........................................................5THRESPONDENT

(Being an appeal from the Judgment of the High Court at Nairobi(G. V. Odunga, J.) dated 10thDecember 2018

in

Judicial Review Application No. 686 of 2017)

*********************

RULING OF THE COURT

Before us is a Notice of Motion dated 14th February 2019, and filed on 15th February 2019. It is premised on Rule 42 and 77 of the Court of Appeal Rules (CAR). It substantively seeks to strike out the Notice of Appeal dated 13th December 2018, together with an attendant prayer for provision for costs. It is supported by grounds on its body, a supporting affidavit of Jeremiah Nyegenye CBS,and a further affidavit ofEsther Mwikali,sworn on 16th May 2019 and filed on 17th May 2019. The application is opposed by a replying affidavit sworn and filed on 13th May 2019 by Anne R. Gitau, on behalf of the 1st respondent.

The application was canvassed by way of oral submission. Learned counsel Mr. G. S. Miyareappeared for the applicant, while learned counselMr. Andrew Wandabwa,appeared for the 1st respondent. There was no appearance for the 2nd, 3rd, 4th and 5th respondents who were duly served. In support of the application the applicant submitted that on 10th December, 2018 the High Court (G.V. Odunga, J.) delivered a judgment in Judicial Review Application No. 686 of 2017 and issued an order of certiorari quashing the decision by the 1st Respondent contained in Gazette Notice no. 6517published on 7th July 2017. On 15th January 2019 the 1st respondent served upon the applicant Civil Application No. 9 of 2019, seeking stay of execution of the orders issued by the High Court, to which was annexed “a purported notice of appeal” dated 13th December 2018. Since then, counsel argued, the 1st respondent had not been served with the said notice or any other notice at all and that it is a mandatory requirement of the law that any notice of appeal filed by an intended appellant must be served personally on all parties directly affected by the intended appeal within seven (7) days of lodging the same.

Mr. Miyaretherefore urged us to reject the 1st respondent’s contention that it effected service on the applicant by registered post since no return of service was exhibited as required by law. The applicant further urged the Court to find that the purported service is not only false and misleading but also improper and unacceptable in law. To buttress the above submission, the applicant relied on the case of Daniel Nkiringa Monirei v. Sayialel Ole Koilel & 4 Others[2016] eKLRandJustus Aloo Ogeka & 6 Others v. Kenya Union of Commercial Food and AlliedWorkers & 2 Others[2018] eKLR, in which the notices and records of appeal were struck out for non-compliance with the mandatory requirements of Rules 76(1) and 77(1) of the Court ofAppeal Rules.

Mr. Wandabwa,in opposing the application, agreed that the orders of the High Court were made on 10th December 2018. The 1st respondent was aggrieved and desired to appeal. It timeously filed both the notice of appeal and the letter bespeaking proceedings at the High Court registry on 19th December 2018. Being aware that advocates offices normally close for Christmas holidays, his firm caused the notice of appeal to be served on all parties directly affected by the intended appeal by registered post and that it was only the applicant who was complaining of lack of service of the notice of appeal through registered post.

It was also Mr. Wandabwa’s contention that the intended appeal raises issues of general public importance and should therefore be accorded an opportunity to be heard on its merit. In light of the fact that the other parties were not complaining of lack of service, Mr. Wandabwa urged us to find that there was service and to dismiss the application especially since the 1st respondent stood to suffer no prejudice if the applicant were accorded an opportunity to pursue the intended appeal. To buttress the above submissions, counsel relied on Nicholas Kiptoo ArapSalat v. Independent Electoral and Boundaries Commission & 6 Others[2013] eKLR, where an appellant was afforded an opportunity to pursue its appeal in the absence of intentional or contumelious default. He added that any inconvenience caused could be compensated for by way of costs and that the period of delay was not inordinate. It was his further view that it was disproportionate to strike out the appeal for the reason only of non-service of the notice of appeal. He also cited Joseph Kiangoi v. Wachira Waruru & 2 Others [2010] eKLR, Ayub MurumbaKakai v. John Clerk of Webuye County Council[2010] eKLR, Abok James Odera t/a A.J. Odera Associates v. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, andGichuki King’ara & Company Advocates v. Emperium Enterprises Limited and 2 Others Civil ApplicationNo. NAI 1211 of 2012 (UR 156/2012)and urged us to take a broad view of justice as mandated by the overriding objective.

In reply, Mr. Miyare submitted that the intended appeal is primarily against the applicant and not the other parties and maintained that the intended appeal does not lie because Rule17(1) of theCourt of Appeal Rulesis mandatory that leave of the court must obtained before adopting other modes of service.

We have considered the rival pleadings, submission and principles of case law relied upon by the applicant and the 1st respondent in support of their opposing positions. Rule 77(1) on which this application is primarily founded provides as follows:

“An intended appellant shall, before or within seven days after lodging notice of appeal send copies thereof on all persons directly affected by the appeal.”

The order that aggrieved the 1st respondent was issued on 10th December 2018. Rule75(1)and(2)obliged the 1st respondent to lodge the Notice of Appeal within fourteen days. It provides as follows: -

“(1) Any person who desires to appeal to the court shall give notice in writing which shall be lodged in duplicate with the Registrar of the Superior Court

(2) Every such notice shall, subject to rule 84 and 97 be so lodged within fourteen days of the date of the decision against which it is desired to appeal.”

The 1st respondent submits that it complied with the prerequisite in Rule 75(1) and (2) because it lodged a notice of appeal dated 13th December 2018 in the High Court Judicial Review Division on 19th December 2018 in compliance with Rule 77(1) and because of the impeding Christmas holidays, caused the said notice to be served on all parties directly affected by the intended appeal by registered post within seven (7) days of such lodging. Such service, it was contended, is allowed by the Rules. The applicant on the other hand, countered that it came to learn of the existence of the impugned notice on 15th January 2019, when it was served with an application for stay of execution. It disputed service by registered post in the absence of an affidavit of service and also on the basis that the Court had not sanctioned such service.

It is not in doubt that the 1st respondent has not provided an affidavit of service to prove service by registers post. It has however exhibited Postal Corporation of Kenya receipts, five (5) in number, one of which bears the name of Miyare and Company Advocates, all rubber stamped 19th December 2018 by the Postal Corporation of Kenya. The 1st répondent contents that none of posted notices was returned to them unclaimed. The applicant however urges us to ignore the receipts because postal service was not sanctioned by the Court.

Rule 17 (1)and(4)of the Court of Appeal Rules provide as follows:

“17(1) Where by in these Rules any document is required to be served on any person, service may be effected in such way as the Court may in any case direct, and in the absence of any special direction shall be made personally on the person to be served or any person entitled under rule 22 to appear on his behalf or by any other recognized mode of service as provided under Order 5 of the Civil Procedure Rules, 2010

…

(4) Proof of service may be given where necessary by affidavit, unless in any case the Court shall require proof by oral evidence.”

In our view personal service is one of the modes of service of documents approved by the rules. That said, the Court may allow any other mode of service. There is however no mandatory requirement that the Court must sanction all other modes of service other than personal service. This is borne out by the use of the words “or by any other recognized mode of service as provided under Order 5 of the Civil Procedure Rules, 2010”. Order 5 Rule 3of theCivil Procedure Rules(CPR) provides for service on corporations by way of registered post among others modes of service as specified therein. We find nothing either in Rules 17(1) and (4) or Order 5 Rule (3) of theCivil Procedure Rulesrequiring that service by registered post must receive prior sanction of the Court.

As for proof of service, even though there was no affidavit of service, this was not fatal. An affidavit of service is one mode of proving service. In this case the 1st respondent has exhibited Postal Corporation receipts bearing the dates and names of the firms of advocates for the parties in the intended appeal. It would not be acting constantly with the overriding objective to ignore this evidence of service. See Owino Ger v Marmanet Forest Co-operative Credit Society Ltd [1987] eKLR;CFC Stanbic Limited v. John Maina Githaiga & Another [2013] eKLR, andCatherine Njuguini Kanya & 2 Others v. Commercial Bank of Africa Ltd Civil Application No. Nai366 of 2019. Rule 84of the Court of Appeal Rules obliged the applicant to apply to strike out the notice of appeal within 30 days from the date of service of the notice upon it. In this case the applicant acknowledges that it became aware of the notice of appeal when it was served with the application for stay of execution on 15th January 2019. As we have noted, the Postal Corporation receipts show that service was effected on 19th December 2018. Whichever date one considers the application to strike out the notice of appeal was filed out of time.

For the foregoing reasons, we are inclined to sustain the notice of appeal for reason that rules of procedure are handmaidens of justice. See Nicholas Kiptoo Arap Salat v. IndependentElectoral and Boundaries Commission and 6 Others [supra].That too is the course of action, in the circumstances of this application, which is more consistent with the letter and spirit of the overriding objective, which we are obliged to promote.

Accordingly, this application is dismissed with costs to the 1st respondent. It is so ordered.

Dated and Delivered at Nairobi this 24th day of April, 2020.

R. N. NAMBUYE

………….............................………...

JUDGE OF APPEAL

K. M’INOTI

………............................…………….

JUDGE OF APPEAL

S. ole KANTAI

……………...............................…….

JUDGE OF APPEAL

I certify that this is a

true copy of the original

Signed

DEPUTY REGISTRAR