Benson Ngugi Muiruri v Kenya National Capital Corporation Limited [2001] KECA 361 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice of appeal was never properly served, even though filing was allowed out of time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order extending time for filing a fresh notice of appeal, and deeming the notice of 14th October 1998 filed, also cured the failure to serve the notice of appeal as required by rule 76(1) of the Court of Appeal Rules
- 2.Whether service of a draft notice of appeal as an annexture to the application for extension of time amounted to service of the notice of appeal under rule 76(1)
- 3.Whether the superior court orders of 5th April 2000 and 2nd October 2000 required certification before inclusion in the record of appeal
- 4.Whether the non-inclusion in the record of appeal of documents not in the primary category was fatal to the appeal
Key legal issues
#Whether an order extending time for filing a notice of appeal, and deeming a notice filed, also cures non-service under rule 76(1)
No. Filing and service are distinct steps; an extension order silent on service does not validate service, and a court extending time for filing must expressly exercise its discretion on service as well
Rule 74 of the Court of Appeal Rules governs the filing of a notice of appeal and rule 76 governs its service; the two are different steps in an intended appeal. Where a notice is filed out of time and the Court extends time for filing, it cannot be assumed that the deeming order also covers service. Here the extension order was silent on service, and there was no evidence the appellant had prayed for an order deeming service effected. Since the striking out rested on this ground, it is the ratio of the decision.
Whether service of a draft notice of appeal annexed to the application for extension of time constituted service under rule 76(1)
No. A draft notice given as an annexture to an extension application is not a notice of appeal served as prescribed; service before lodgment is recognised only where the notice is filed as the rule prescribes
The Court accepted that a draft notice of appeal was given to the respondent and received on 14th October 1998, but it was given as an annexture to the application for extension of time. Service before lodgment is recognised only if the notice of appeal is filed as prescribed in the rule. Because the notice was not filed on time and the Court was asked to extend time for filing, it could not be assumed that the order deeming the notice filed also covered service.
Whether the superior court orders of 5th April 2000 and 2nd October 2000 required certification before inclusion in the record of appeal
No. They are not the orders appealed from; only the order or decree from which an appeal is brought requires certification under rule 85(1)(h)
The Court rejected this ground, holding that certification is required only for the order or decree from which the appeal has been brought. The orders of 5th April 2000 and 2nd October 2000 were not the orders appealed from, so their inclusion in the record without certification was not a defect. This ground did not drive the outcome, which turned entirely on the failure to serve the notice of appeal.
Whether the omission from the record of appeal of documents not in the primary category was fatal to the appeal
No. Such documents may be brought on record later, with leave, by way of a supplementary record of appeal under rule 89 as read with rule 85(2A)
The Court held that non-inclusion of documents outside the primary category is not fatal to an appeal because they may be brought on record with leave by way of a supplementary record of appeal. Like the certification point, this ground lacked merit and formed no part of the basis for striking out the appeal, which rested solely on the failure to serve the notice of appeal as required by rule 76(1).
Legal principles established
#- An order extending time to file a notice of appeal does not by implication cure a default in service; when granting such an extension, the Court must expressly exercise its discretion on the issue of service
- Service of a notice of appeal is never a matter of implication; validation of the filing and service of a draft notice of appeal requires an express order of the Court
- Filing of a notice of appeal (rule 74) and its service (rule 76) are distinct steps in an appeal governed by different provisions
- Orders of the superior court that are not the orders appealed from require no certification before inclusion in a record of appeal
- Omission from a record of appeal of documents outside the primary category is not fatal; they may be included by a supplementary record of appeal with leave under rule 89 as read with rule 85(2A)
Court orders
#- 1.The appeal is struck out with costs to the respondent
- 2.The applicant/respondent is awarded the costs of the motion dated 9th February, 2001
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (referred to in the judgment as 'the superior court')
- Civil Case No 1981 of 1993
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter came before the Court of Appeal as an appeal from the superior court, with the respondent's striking-out motion brought under rule 80 of the Court of Appeal Rules
Relief refused
#The appellant's bid to sustain the appeal despite non-service of the notice of appeal, relying on the deeming order and the service of a draft notice with the extension application
The extension order was silent on service; filing and service are distinct steps, service cannot be left to implication, and there was no evidence the appellant had prayed for a deeming order on service
The respondent's subsidiary grounds for striking out the appeal, namely the inclusion of the uncertified orders of 5th April 2000 and 2nd October 2000 in the record and the omission of non-primary documents (these grounds were rejected, although the motion ultimately succeeded on the service ground)
Orders not appealed from require no certification, and non-primary documents may be brought on record by way of a supplementary record of appeal with leave
Costs
The appeal was ordered struck out with costs to the respondent; in addition, 'The applicant/respondent shall also have the costs of the motion dated 9th February, 2001.'
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.
In the result and for the reasons we have endeavored to give, this appeal is incurably incompetent and is therefore ordered struck out with costs.
The applicant/respondent shall also have the costs of the motion dated 9th February, 2001.
Validation of filing and service of a draft notice of appeal must be by an express order of the Court.
Service is not a matter to be left to implication.
Where, however, as here the notice of appeal was not filed on time, and the Court was asked to extend the time within which to file it, it cannot be assumed that because the Court ordered that a notice of appeal filed out of time is deemed to have been filed, the order also covered the issue of service.
From the rule it is clear that the service of the notice of appeal may be effected either before its lodgment or within 7 days of doing so.
Such orders require no certification before being included in a record of appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Ngugi Muiruri v Kenya National Capital Corporation Limited [2001] KECA 361 (KLR)", Case Analysis (2001). Not stated in the judgment (arising from superior court Civil Case No 1981 of 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/361/eng@2001-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.