Muse v Wepukhulu & 10 others [2022] KECA 503 (KLR)

Muse v Wepukhulu & 10 others (Civil Application 111 of 2020) [2022] KECA 503 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KECA 503 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application 111 of 2020

PO Kiage, M Ngugi & F Tuiyott, JJA

April 28, 2022

Between

Maurice Anthony Wanjala Muse

Applicant

and

John Simiyu Wepukhulu

1st Respondent

Issac Wafula Wanakach

2nd Respondent

Omoto David alias Omoto Philip

3rd Respondent

Solomon Wanyonyi Khaemba

4th Respondent

Abraham Change Wekesa

5th Respondent

Penana Mtonyi

6th Respondent

Mary Ambogo

7th Respondent

Nelly Sikhoya Balanga

8th Respondent

Anne Nekesa Wekesa

9th Respondent

Jotham Simita

10th Respondent

Wycliffe Airo Sirikwa

11th Respondent

(Being an application to strike out the notice of appeal in the Environment & Land Court at Kitale dated 11th August, 2020 in Case No. 17 of 2011)

Ruling

1. By the motion on notice dated 16th September 2020, brought under Rule 84 of the Rules of Court, the applicant prays that the notice of appeal dated 11th August 2020 and served on 9th September 2020 be struck out for having been served contrary to the orders of this Court made on 7th August 2020 and Rule 77(1) of the Court of Appeal Rules.

2. The grounds on the face of the motion state that the respondents had on application been granted 14 days from 7th August 2020 within which to serve the notice of appeal, but they did so on 9th September 2020, which was way after the stipulated time. The applicant’s supporting affidavit sworn on 16th September 2020 makes the same assertions on oath. There has been no replying affidavit or any answer to the application. Indeed, the respondents’ advocates were absent when the motion came up for hearing on 14th December 2021 even though they were duly served on 7th December 2021 with notice of the hearing. They also did not file submissions as directed.

3. Given the uncontroverted evidence that the respondents, despite being granted reprieve by Nambuye, J.A who extended time for them to file their notice of appeal, neglected or failed to serve the same within the days given, the application before us is unanswerable. The failure to serve the notice of appeal within the time given was a failure to take an essential step within the meaning and intendment of Rule 84.

4. In addition, the late service constitutes a default of a condition given by the Court for the validation of the notice of appeal, leaving it incompetent.

5. In the result, the motion is granted and the notice of appeal dated 11th August 2020 be and is hereby struck out with costs.

6. The applicant shall have the costs of the motion.

DATED AND DELIVERED AT KISUMU THIS 28THDAY OF APRIL, 2022. P. O. KIAGE..........................JUDGE OF APPEALMUMBI NGUGI..........................JUDGE OF APPEALF. TUIYOTT..........................JUDGE OF APEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR