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Court of AppealDismissedNot stated in the judgment (application dated May 5, 2022; notice of appeal dated May 12, 2021)

Rono & 32 others v Kiplagat & another (Civil Application E072 of 2022) [2023] KECA 360 (KLR)

Court of Appeal of Kenya
31 March 2023
838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed an attempt to strike out a notice of appeal because the applicants couldn't prove service was late.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nakuru (Sichale, Ochieng and Achode, JJA) delivered on March 31, 2023, dismissing the applicants' notice of motion dated May 5, 2022. The applicants sought four orders: striking out the respondents' notice of appeal dated May 12, 2021 filed in the Environment and Land Court at Eldoret; a declaration that the respondents had abandoned their intended appeal; vacating a stay of execution granted in Eldoret Court of Appeal Civil Application No E078 of 2021; and costs. The applicants' case was that the notice of appeal and the letter requesting proceedings were not served on them until April 27, 2022, long after service was due. The respondents, through a replying affidavit sworn by the 1st respondent, Hudson Kiptum Kiplagat, denied this, asserting that service was effected on May 14, 2021 and verified by an affidavit of service, and noted that the applicants had raised no objection when a conservatory-orders application came up for hearing. The court found itself confronted with two diametrically opposed statements of fact, with neither party seeking to cross-examine the deponents. Applying Sections 107 and 108 of the Evidence Act, the court held that the burden lay on the applicants, who would fail if no evidence were given on either side; having failed to discharge that burden, they did not demonstrate that the notice of appeal was filed or served late. The application was dismissed with costs to the respondents, costs following the event absent justification for departure.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants proved that the notice of appeal dated May 12, 2021 and the letter seeking proceedings were served late (on April 27, 2022 rather than May 14, 2021)
  2. 2.Whether the notice of appeal should be struck out and the respondents deemed to have abandoned their appeal
  3. 3.Whether the stay of execution granted in Eldoret Court of Appeal Civil Application No E078 of 2021 should be vacated

Key legal issues

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01

Allocation of the burden of proof on the disputed fact of service of the notice of appeal

Holding

The burden lay on the applicants, who asserted late service; having failed to prove it, their application failed

Reasoning

Faced with two irreconcilable depositions on service - the applicants asserting service on April 27, 2022, the respondents insisting on service on May 14, 2021 supported by an affidavit of service - the court applied Sections 107 and 108 of the Evidence Act. Neither party sought cross-examination of the deponents, so the court could not ascertain the true facts. The party who would fail if no evidence were given on either side, namely the applicants, bore the burden and did not discharge it.

p. 2
02

Costs where an interlocutory application fails

Holding

Costs followed the event; the applicants were ordered to pay the respondents' costs of the application

Reasoning

The court applied the ordinary rule that costs follow the event. As the application was wholly unsuccessful and the applicants showed no justifiable reason for departing from the normal position in which the successful party is awarded costs, the applicants were ordered to pay the respondents' costs of the application dated May 5, 2022.

p. 3

Legal principles established

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  • A party who asserts a fact on which their application depends bears the burden of proving it, and where the parties' affidavits conflict and no cross-examination is sought, the applicant who would fail if no evidence were given on either side must prove their assertion.
  • Costs follow the event unless the unsuccessful party demonstrates a justifiable reason for departing from the normal position.

Court orders

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  1. 1.The application dated May 5, 2022 is dismissed
  2. 2.The applicants to pay to the respondents the costs of the application dated May 5, 2022

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Eldoret
Eldoret Court of Appeal, Civil Application No E078 of 2021 (stay application referenced); underlying Environment and Land Court matter
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over an interlocutory application within an appeal from the Environment and Land Court (no specific constitutional or statutory provision invoking jurisdiction is stated)

Relief refused

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Striking out of the notice of appeal dated May 12, 2021

The applicants failed to discharge the burden of proving that the notice of appeal was filed or served late

p. 3

Deeming the respondents to have abandoned their appeal

The application failed for want of proof of the asserted late service

p. 3

Vacating the stay of execution granted in Eldoret Court of Appeal Civil Application No E078 of 2021

The application failed in its entirety; no basis was established to disturb the stay

p. 3

Costs

The applicants will pay to the respondents the costs of the application dated May 5, 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
p. 2Burden of proof - Section 107 Evidence Act
The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.
p. 2Burden of proof - Section 108 Evidence Act
They failed to discharge the burden of proof. Therefore, we find that the applicant failed to demonstrate that the notice of appeal was filed late. Accordingly, the application fails.
p. 3Disposition - application dismissed for failure of proof
we order that the applicants will pay to the respondents, the costs of the application dated May 5, 2022
p. 3Costs order - costs follow the event

Issues in the judgment

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minor

The judgment contains two blank paragraph numbers at the start and does not state the case title, case number, or the names of the parties in the record; the parties are identified only by role and by the 1st respondent's name in the replying affidavit

minor

The judgment refers to an intended appeal from a Ruling delivered on October 12, 2021, while the notice of appeal is dated May 12, 2021 and was filed May 13, 2021 - a date inconsistency apparent on the face of the record that the applicants relied on

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rono & 32 others v Kiplagat & another (Civil Application E072 of 2022) [2023] KECA 360 (KLR)", Case Analysis (2023). Not stated in the judgment (application dated May 5, 2022; notice of appeal dated May 12, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/360/eng@2023-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.