Khamis & 2 others v Kalume & 19 others [2023] KECA 347 (KLR)

Khamis & 2 others v Kalume & 19 others (Civil Appeal (Application) E057 of 2021) [2023] KECA 347 (KLR) (31 March 2023) (Ruling)

Neutral citation: [2023] KECA 347 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Appeal (Application) E057 of 2021

SG Kairu, JW Lessit & GV Odunga, JJA

March 31, 2023

Between

Abdulhakim Abeid Khamis

1st Appellant

Jamal Abeid Khamis

2nd Appellant

Mohamed Abeid Khamis

3rd Appellant

and

Kahindi Charo Kalume

1st Respondent

Wilson Ndoro Mwanyuni

2nd Respondent

Mgandi Yawa

3rd Respondent

Mambo Nzuri

4th Respondent

Fatuma Mazera

5th Respondent

Bandika Ngao Nyerenyere

6th Respondent

Rashid Ali Duto

7th Respondent

Mwamta Ngale Besaha

8th Respondent

Rashid Kombo Myugo

9th Respondent

Mwanajuma Nyota

10th Respondent

Jumaa Ruwa

11th Respondent

Jephason Chiringa Kombo

12th Respondent

Ali Mbaji Mwinyi

13th Respondent

Kakono Mkauma

14th Respondent

Anne Mlongo Rumba

15th Respondent

Chitseso Chitoja

16th Respondent

Kokoi Mrinzi

17th Respondent

The Legal Representatives of Cassam Suleiman & Haji Dada Kumber Executors of the Estate of Haji Suleiman Sumar Khamisa

18th Respondent

Hakika Transport Services Ltd

19th Respondent

Municipal Council of Mombasa

20th Respondent

(Being an application to strike out the Respondent’s record of appeal dated 15th July 2021 from the ruling of the Environment and Land Court of Kenya at Mombasa delivered by the Hon. Munyao Sila, J. on 17th May 2021 in ELC Case No 194 of 2010 Environment & Land Case 194 of 2010 )

Ruling

1. The Applicants in this application are the Respondents in the appeal [hereinafter the Respondents]. The application is dated December 16, 2021, and has been brought pursuant to Rule 84 of the Court of Appeal Rules 2010 [now Rule 86 of the 2022 Rules]. It seeks to have the Appellants Record of Appeal dated July 15, 2021, struck out. The grounds for the application are that the Appellants failed to take essential steps in that, despite lodging the Record of Appeal on July 16, 2021, the Appellants served the same on the November 26, 2021, outside the stipulated time of 7 days and without leave of the Court. The Respondents, invoking Rule 92 (1) of this Court’s Rules, urged that five months delay in service of the Record of Appeal disentitle the Appellants from being heard on the appeal, and urged us to strike the Record of Appeal with costs to the Respondents.

2. The background to the appeal is that the 1st to 17th Respondents sued the 18th to 20th Respondents claiming entitlement to 162 acres of the land Plot 387 (Original 280/2 V/MN) and Title CR 8813, [hereinafter the suit land] registered in the names of Cassman Suleiman Sumar and Haji Osaman Dada Kumber, by way of adverse possession. The court vide judgement rendered on October 30, 2014, found that the 1st to 17th Respondents were entitled to only 132 out of the 162 acres of the suit land.

3. The Appellants filed an application dated August 27, 2020 before the same Court seeking to be enjoined as defendants, and also seeking to have the judgement dated October 30, 2014 set aside. The grounds of that application was that the Appellants parcels of land MN/V/240 and MN/V/2618, came from the subdivision of the suit land. The court vide ruling rendered on May 17, 2021 found no merit in the application and dismissed it. The Appellants were dissatisfied with the impugned decision and filed the subject appeal.

4. The application was heard on the virtual platform on October 31, 2022. Learned counsel; Mr. Martin Tindi for the 1st to 17th Respondents, Mr. Gift Mwangunya holding brief for Mr. Robinson Malombo for the Appellants and Ms. Oruta for the 20th Respondent were present. There was no appearance for the 18th Respondent despite service upon the counsel on record made through email on October 7, 2022. The suit as against the 19th Respondent was withdrawn.

5. Mr. Tindi relied on his submissions dated October 26, 2022, filed in support of the application. Placing reliance on the case of Total Kenya Limited v Reuben Mulwa Kioko (2018) eKLR, the Respondents urged that the delay in service of the Record of Appeal as well as the timeous filing of the instant application seeking to strike out that record entitled the Respondents to the orders sought.

6. Mr. Mwangunya relied on the replying affidavit sworn by Robinson Malombo dated September 28, 2022 together with the written submissions dated October 28, 2022 filed alongside the list of authorities. The Appellants’ position was that since the Record of Appeal was filed electronically, the Court also served the Respondents automatically, as part of the service provided by the Court. It was contended that the Respondents did not comply with Rule 81 of this Court’s Rules by failing to lodge a notice of full and sufficient address for service.

7. We have considered this application. Recently, in the case of Borderless Tracking Limited vs Thigah(Civil Application E035 of 2021) [2022] KECA 38 this Court reiterated that the timelines provided by the Rules for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals and the same command obedience.

8. The Appellants have acknowledged that they lodged the Record of Appeal on July 16, 2021, and served the Respondents on the November 26, 2021. It is acknowledged that this was way out of the prescribed timelines under the Rules. The Appellants excuse was that in line of the Covid-19 Directions by the Judiciary they expected the Court to serve the Respondents once the Record of Appeal was filed through the e-filing system. The Appellants urged upon filing of the Record of Appeal through e-filing, they provided the email address of the Respondents and paid for the service fee. The payment receipt is annexure ROM-1 in the replying affidavit of Robinson Onyango Malombo, and among payments made was service fees as contended. The Appellants, through the replying affidavit deposed that Case Management for the hearing of the main appeal took place on April 12, 2022, and that the parties have already filed submissions in readiness for the appeal.

9. We have noted that the Respondents have not denied that the email address used to serve the Record of Appeal was not theirs. The Respondents have not denied that they did not file a full and sufficient address of service as required under Rule 81 of the Court of Appeal Rules [hereinafter the Rules]. We agree with the Appellants that in light of the provisions of Rule 92, which requires an Appellant to service the Memorandum and Record of Appeal on each Respondent who has complied with Rule 81, the Respondents cannot rely on the physical non-service of the Record of Appeal in support of the instant application.

10. We also take judicial notice of the outbreak of the COVID 19 Pandemic and the unprecedented challenges it visited on the administration of justice, which largely interfered with normal court operations for the better part of 2020 and sometimes in 2021. We are aware of the directions that issued by the Judiciary regarding the administration of justice during the pandemic especially as regards filing and service of pleadings and court processes. In the circumstances, we find that the in light of the Covd-19 directions failure to effect physical service upon the Respondents was not fatal.

11. We have come to the conclusion that the Respondents were electronically served with the Record of Appeal, and that the said service sufficed, given the Covid-19 directions by the Judiciary that were in place at the time. We find that the application dated December 16, 2021 has no merit and is accordingly dismissed with costs to the Appellants.

Dated and Delivered in Mombasa this 31st day of March 2023S. GATEMBU KAIRU (FCI Arb.).....................................JUDGE OF APPEALJ. LESIIT.....................................JUDGE OF APPEALG. V. ODUNGA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR