Sheikh v Sheikh & another [1985] KECA 150 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant failed to serve every party directly affected by it, even though they weren't complaining.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Hameed, City Development and Pickwell, who did not apply for the stay nor join the appeal, were 'persons directly affected by the appeal' within rule 76(1) of the Court of Appeal Rules and so had to be served with the notice of appeal and appeal
- 2.Whether failure to serve them was fatal to the appeal
Key legal issues
#Who is a person directly affected by an appeal for purposes of mandatory service under rule 76(1)
Co-defendants who entered appearance, took part in the stay application, filed affidavits and whose interests are bound up with the outcome of the appeal are directly affected and must be served.
The court reasoned that the pleadings, prayers and Platt J's order affected the second, third and fourth defendants' property and interests; they had appeared by counsel and sworn affidavits supporting arbitration, showing a direct nexus. The object of the rule is that no party likely to be directly affected by the result of an appeal should be affected without an opportunity of being heard, and non-service is fatal regardless of actual grievance.
Effect of non-compliance with rule 76(1)
Failure to serve a directly affected person is an essential omitted step and the appeal will be struck out under rule 80.
Because the requirement is mandatory, the court cannot overlook non-service even where no prejudice is shown; this court could have excused service only on a direction that it need not be effected, and no such direction was sought or made. The appellant could not limit service to the plaintiffs alone since the co-defendants' rights were engaged by the appeal.
Whether all defendants must join a stay application under section 6 of the Arbitration Act
No; one of several defendants may alone apply for a stay, following Willesford v Watson.
Hancox JA distinguished between standing to apply for a stay, which one defendant alone possesses, and the separate question of who is directly affected by a subsequent appeal. The English 1854 Act and the Kenyan provision are similar; the legislature did not require all defendants to concur in a stay application, but that does not narrow the class of persons entitled to service of the appeal.
Legal principles established
#- Rule 76(1) of the Court of Appeal Rules mandatorily requires an appellant to serve copies of the notice of appeal and appeal on all persons directly affected by the appeal, whether or not they take part in the High Court proceedings or suffer prejudice from non-service.
- A party is directly affected by an appeal where the result of the appeal may affect that party's actions or property, and such a party must be given an opportunity of being heard.
- Under section 6 of the Arbitration Act, not all defendants need join or concur in an application for stay of proceedings pending arbitration.
Court orders
#- 1.The appeal is struck out under rule 80 of the Court of Appeal Rules
- 2.Costs of the striking-out application and the appeal awarded to the respondents (the appeal is struck out with costs)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held that rule 76(1) obliged the appellant to serve the notice of appeal on all persons directly affected, including the second, third and fourth defendants; the requirements are mandatory and the appeal should be struck out with costs.
So I would strike out the appeal with costs and as Hancox JA and Nyarangi Ag JA agree it is so ordered.p. 3
Wrote the judgment
Concluded that although all four defendants need not join in the stay application, the second, third and fourth defendants were persons directly affected by the appeal within rule 76(1) and, not having been served, an essential step was omitted so the appeal must be struck out under rule 80.
Accordingly, even though they did not formally join or concur in the application for the stay of proceedings, on the grounds that there was a valid reference to arbitration, the second, third and fourth defendants are in my judgment persons directly affected by the appeal and should have been served with the notice of appeal.p. 4
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Leave to appeal granted by the High Court under section 6 of the Arbitration Act (cap 49); appeal governed by rules 76 and 80 of the Court of Appeal Rules
Relief refused
#Waheed's appeal against the refusal of a stay of proceedings pending arbitration
The notice of appeal and appeal were not served on all persons directly affected by the appeal as rule 76(1) requires
Costs
Appeal struck out with costs to the respondents Shakoor and Raoof
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
So I would strike out the appeal with costs and as Hancox JA and Nyarangi Ag JA agree it is so ordered.
The requirements of rule 76(1) and its proviso are mandatory.
The object of the rule and of the proviso is that the rights of a party likely to be directly affected by the result of an appeal should not be affected without the party being provided with an opportunity of being heard.
As they were not served an essential step was not taken. If follows that the appeal should be struck out under rule 80.
It is therefore clear that all four defendants in this case were not required to join in the application to the court for the stay of proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh v Sheikh & another [1985] KECA 150 (KLR)", Case Analysis (1985). Court of Appeal Civil Appeal (Nairobi) - appeal by Waheed Sheikh from High Court order of Platt J refusing stay. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/150/eng@1985-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.