Lina Cherop Wangamati v Philip Kisang & Kabon Kisang [2020] KECA 262 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

[CORAM: MURGOR, SICHALE & KANTAI, JJ.A]

CIVIL APPLICATION NO. 87 OF 2018

BETWEEN

LINA CHEROP WANGAMATI.............................................................APPLICANT

AND

PHILIP KISANG..........................................................................1STRESPONDENT

KABON KISANG.......................................................................2NDRESPONDENT

(Being an Application to strike out the Notice of Appeal against thejudgment

of theHigh Court of Kenyaat Kitale (H.K Chemitei, J.)dated 14thMay, 2018

In

Succession Cause. No. 61 of 2014)

*************************

RULING OF THE COURT

The applicant, Lina Cherop Wangamati has filed a Notice of Motion dated14thSeptember 2018, underRules 83and84of this Court’s Rules seeking to strike out the respondents’ notice of appeal dated and filed on 25th May 2018 against the Judgment of Chemitei, J. delivered on 18th May 2018.

The grounds on the face of the application which are reiterated in the supporting affidavit of Peter Kiarie Ndarwa, the applicant’s advocate are that:

“i. A notice of appeal was filed on 25thMay 2018 and served upon the respondent on 17thAugust 2018, which is outside the time stipulated by Rule 90(1) of the Court of Appeal Rules, 2010

ii. The respondents failed to institute an appeal within 60 days from the date of filing the Notice of Appeal and the same should be deemed as withdrawn

iii. The Respondents did not make a written request to the court for typed proceedings as a copy was never served on the applicant

iv. A record of appeal has never been served on the applicant”.

The  Respondents,  Philip  Kisang  and  Kabon  Kisang,  did  not  file  any affidavit in response to the instant application.

On 4th  June, 2020, the motion came up before us for consideration “on written  submissions,  no  appearance  of  counsel”.We  have  considered  the application in its entirety. The applicant seeks to strike out the respondents’ notice of appeal under Rule 84 on the basis that an essential step within theproceedings was not taken in time, to wit: Rule 77(1) of this Court’s Rules has not been complied with. The Rule stipulates:

77(1).

“An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal”.

It  is  not  in  dispute  that the  respondents’  notice  of  appeal  was  filed timeously on 25th  May 2018. However, the face of the notice clearly indicates that the notice of appeal was served upon the applicant on 17th  August 2018, which is 77 days outside the stipulated time.

It is well settled that Rule 77 (1) is couched in mandatory terms and that service of the Notice of Appeal must always be effected upon the respondent within 7 days of filing it. (See Stephen Kinoro Kamau vs. Wanjiku Kinuthia & another [2005] eKLRandDaniel Nkirimpa Monirei vs. Sayialel ole Koilel & 4 others [2016] eKLR). The rationale behind this requirement was aptly set out by this Court in Daniel Nkirimpa Monirei (supra) where it was held:

“The purpose of service of a Notice of Appeal is to alert the parties being served that the case in question has not been concluded yet as the same has been escalated to another level. This enables the party to prepare and get ready for another fight, be it by way of gathering resources or just getting mentally prepared for defending the intended appeal. Failure to serve a party with a Notice of Appeal within the time prescribed by law gives a party false belief that the matter has been concluded, only to be ambushed later with the record of appeal in which the said notice is tucked away somewhere in the record. That occasions prejudice to the ambushed party, and it is in our view a habit that should not be countenanced in any fair and just process...”

Indeed, failure to serve the notice of appeal on time may be excused for good reason, if the respondent satisfies the Court that the delay was excusable in the circumstances (See Njeri Njoroge vs. Joseph Maina Gichuhi & another [2018] eKLR and Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR). Unfortunately this is not the case in this instance. There is no application on record seeking to enlarge the time to serve the notice of appeal outside the seven (7) days stipulated in the rules.

It is evident that there is an outright non-compliance of an essential step of this Court’s Rules.

In the end the inevitable outcome of this application is that it succeeds.

Consequently, the notice of appeal dated 25th May, 2018 is hereby struck out. Therespondents shall bear the costs of the application.

Dated and Delivered at Nairobi this 23rdDay of October, 2020.

A. K. MURGOR

....................................

JUDGE OF APPEAL

F. SICHALE

....................................

JUDGE OF APPEAL

S. ole KANTAI

..................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR