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Court of AppealAllowedNot stated in the judgment· [2023] KECA 797 (KLR)

Eddy Kuria & 18 others v Harrison Mwangi Nyota

Court of Appeal of Kenya
30 June 2023
FSF. SICHALEFOF. OCHIENGLAL. ACHODE
745 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an unserved notice of appeal, confirming that serving it within seven days is mandatory.

What this practically means

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Executive summary

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This was an application by notice of motion dated March 7, 2019, brought under section 3A of the Appellate Jurisdiction Act and rules 42, 43, 77 and 84 of the Court of Appeal Rules, 2010, seeking to strike out a notice of appeal dated and filed on December 24, 2018, for want of service on the applicants. The notice was lodged following a judgment delivered by Wendoh, J. in the High Court on December 20, 2018. The applicants deposed, through counsel Kahiga Waitindi, that they were never served with the notice of appeal and only learnt of the intended appeal when served with a stay application on February 24, 2019. At the plenary hearing on March 27, 2023 there was no appearance for the respondent despite service of the hearing notice, and the motion was unopposed. The Court of Appeal (Sichale, Ochieng and Achode, JJ.A) found no evidence on the record that the notice of appeal had been served as required by rule 77(1), which it held is couched in mandatory terms. Endorsing its earlier decision in Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others, the court emphasised that service of a notice of appeal alerts parties that a case has been escalated, and that failure to serve gives a party a false belief that the matter is concluded, only to be ambushed later - a habit not to be countenanced. Noting also that five years had passed without any appeal being filed, the court struck out the notice of appeal with costs to the applicants. The court below was not reviewing the merits of the December 20, 2018 judgment; it extinguished the intended appeal at its threshold.

Key legal issues

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01

Whether a notice of appeal that was never served on the respondents under rule 77(1) should be struck out.

Holding

Yes. Service of the notice of appeal under rule 77(1) is mandatory; where there is no evidence of service and no appeal has been filed years later, the notice will be struck out with costs.

Reasoning

The court found no evidence on the record that the notice of appeal lodged on December 24, 2018 was ever served on the applicants, as required by rule 77(1). Adopting its earlier decision in Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others, the court held that the purpose of service is to alert parties that the case has been escalated, and that non-service occasions prejudice by ambushing a party with a record of appeal. The rule is mandatory, and five years later no appeal had been filed, reinforcing the conclusion that the intention to appeal had lapsed.

p. 3

Legal principles established

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  • Rule 77(1) of the Court of Appeal Rules, 2010, requiring service of a notice of appeal on all persons directly affected by the appeal before or within seven days after lodging it, is mandatory, and an un-served notice of appeal is liable to be struck out.
  • Failure to serve a notice of appeal within the prescribed time prejudices the party served, who is entitled to know that the matter has been escalated to another level, and such non-service will not be countenanced.

Court orders

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  1. 1.The notice of appeal dated December 24, 2018 is struck out
  2. 2.Costs of the application are awarded to the applicants
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act (Cap 9) and rules 42, 43, 77 and 84 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eddy Kuria & 18 others v Harrison Mwangi Nyota", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/797/eng@2023-06-30

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