Swafiya Abdall & another v Bahati Temo & 6 others [2019] KECA 959 (KLR)
The bottom line
#The Court of Appeal struck out a notice of appeal filed but never served on time, ruling constitutional leniency cannot excuse blatant breach of procedure.
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 notice of appeal dated 23rd April 2018 should be struck out for failure to serve it on the applicants as required by Rule 77(1) of the Court of Appeal Rules
- 2.Whether non-compliance with the rules on service of a notice of appeal can be excused under Article 159 of the Constitution
- 3.Whether Civil Application No. 55 of 2018 seeking stay of execution can proceed once the notice of appeal has been struck out
Key legal issues
#Effect of failure to serve a notice of appeal within seven days as required by Rule 77(1)
The notice of appeal is struck out where service was not effected within the prescribed period and no justification exists; entrusting service to a third party does not excuse the default
The respondents admitted filing but not serving the notice of appeal within seven days. The applicants only learnt of the notice and the accompanying stay application through the cause list. The court held that non-observance of procedural rules cannot be masked by Article 159 of the Constitution, because rules of procedure facilitate the due administration of disputes, and the Supreme Court authority confirms Article 159 was never meant to oust compliance with procedural imperatives.
Whether Article 159(2) of the Constitution cures procedural default
No. Procedural technicalities doctrine does not excuse failure to comply with mandatory service requirements
Relying on the Supreme Court's decision in Raila Odinga & 5 Others v IEBC & 3 Others, the court held that Article 159(2) means a court should not pay undue attention to procedural requirements at the expense of substantive justice, but it was never meant to oust the obligation of litigants to comply with procedural imperatives. The respondents' reliance on Article 159 therefore could not avail them.
Fate of a rule 5(2)(b) stay application founded on a struck-out notice of appeal
Once the notice of appeal is struck out, the court has no jurisdiction to entertain the stay application and the motion must be dismissed
The applicants in Civil Application No. 55 of 2018 sought a stay of execution of the ruling of Yano, J. The notice of appeal on which that motion was grounded was the same notice struck out in Civil Application No. 82 of 2018. Since a notice of appeal is a jurisdictional pre-requisite, striking it out removed the foundation of the motion, which was accordingly dismissed with costs.
Legal principles established
#- An intended appellant must serve a notice of appeal on all persons directly affected within seven days of filing; blatant non-observance of this rule cannot be cured by invoking Article 159 of the Constitution
- A notice of appeal is a jurisdictional pre-requisite for a rule 5(2)(b) application; without a valid notice of appeal the Court of Appeal has no jurisdiction to entertain such a motion
- A party cannot escape responsibility for unserved process by blaming a process server they entrusted
Court orders
#- 1.The notice of appeal dated 23rd April 2018 is struck out with costs to the applicants (Swafiya Abdalla and Fatuma Swaleh)
- 2.Civil Application No. 55 of 2018 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC Cause No. 155 of 1993
- Jurisdiction invoked
- Rule 5(2)(b) and Rule 77(1) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. 55 of 2018 (UR 43 of 2018)
Relief refused
#Stay of execution of the ruling and orders of Yano, J. delivered 11th April 2018 sought in Civil Application No. 55 of 2018
The notice of appeal underpinning the stay application had been struck out, leaving the court without jurisdiction to entertain the motion
Costs
The notice of appeal struck out with costs to the applicants (Swafiya Abdalla and Fatuma Swaleh); Civil Application No. 55 of 2018 dismissed with costs to the respondents (Swafiya Abdalla and Fatuma Swaleh)
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.
The non-observance of the rules of procedure cannot be cured by the provisions of Article 159 of the Constitution as the rules of procedure facilitate the due administration of disputes.
Article 159(2) of the Constitution simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.
Having struck out the applicant’s notice of appeal in Civil Application No. 82 of 2018, it therefore follows that we have no jurisdiction to entertain the motion in Civil Application No. 55 of 2018, Accordingly Civil Application No. 55 of 2018 is hereby dismissed with costs to the respondents.
The upshot of the above is that the notice of appeal dated 4 th July 2018 is hereby struck out with costs to the applicants.
In NICHOLAS KIPTOO ARAP KORIR SALAT VS INDEPENDENT AND BOUNDARIES COMMISSION & 7 OTHERS [2014] eKLR, the Supreme Court re-emphasized that a notice of appeal “… is a jurisdictional pre-requisite.”
Issues in the judgment
#The judgment states the struck-out notice of appeal is dated 4th July 2018 in the final order, but throughout the ruling the notice of appeal is consistently dated 23rd April 2018 (4th July 2018 is the date of the applicants' motion). This appears to be a typographical error in the disposition.
The court refers to 'Section 77(1) of this Court’s Rules' in one passage although Rule 77(1) was earlier quoted as a rule, not a section.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swafiya Abdall & another v Bahati Temo & 6 others [2019] KECA 959 (KLR)", Case Analysis (2019). Civil Application No. 82 of 2018 (UR 83/2018) and Civil Application No. 55 of 2018 (UR 43 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/959/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.