Olonana Limited v Rafiki Limited [2024] KECA 1520 (KLR)

Olonana Limited v Rafiki Limited (Civil Application E094 of 2023) [2024] KECA 1520 (KLR) (25 October 2024) (Ruling)

Neutral citation: [2024] KECA 1520 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Civil Application E094 of 2023

MA Warsame, PM Gachoka & WK Korir, JJA

October 25, 2024

Between

Olonana Limited

Applicant

and

Rafiki Limited

Respondent

(An appli cati on seeki ng to stri ke out a notice of appeal agai nst the j udg ment of t he Envi ronment and l and Court at Kil gori s (Was he, J.) dat ed 20th Sept e mber 2023 in ELC Cause No. 34 of 2021)

Ruling

1. The appli cant has fil ed a noti ce of moti on dat ed 31st Oct ober, 2023 seeki ng to stri ke out t he responde nt’ s Noti ce of Appeal fil ed on 26th Sept e mber, 2024 and served on 2nd Oct ober, 2023.

2. The grounds i n support of t he Noti ce of Moti on as st at ed on t he f ace of t he appli cati on and deponed i n t he supporti ng affi davi t of Wai r ui Wai ganj o, a Fi nance Di rect or wi t h t he appli cant are t hat:a.Judg me nt was delivered on 20th Sept e mber, 2023 i n f avour of t he appli cant entitli ng hi mto qui et and excl usi ve possessi on of 20 acres wi t hi n the sui t propert y i n li ne wi t h t he l ease agree me nt dat ed 30th March, 2018b.Eve n t hough t he noti ce of appeal was fil ed on ti me, it i s i ncur abl y def ecti ve and cannot be a me nded because firstly; t he noti ce of appeal whi ch was sent vi a e mail i s nei t her dat ed, seal ed or si gned by t he Deput y Regi strar contrary to Rul e 77( 1) and ( 2) of t he Cour t of Appeal Rul es hence t here i s no proof it was l odged or recei ved by t he Deput y Regi strar. Secondl y, t he responde nt has not specifi ed whi ch part of t he appeal it i ntends to appeal contrary to Rul e 77 ( 3) of t he COA Rul es 2022.

3. I n opposi ti on to t he appli cati on, t he responde nt has fil ed a Repl yi ng Af fi davi t dat ed 16th Nove mber, 2023 s wor n by its direct or Uwe Her dees, who deponed t hat:a.The court assessed t he noti ce of appeal and request f or typed pr oceedi ngs vi a an e mail sent on 27th Sept e mber, 2023 and sent t he pay me nt det ail s to its advocat es. Its advocat es pai d vi a M- pesa, sent proof of pay me nt to t he court and t he court sent back t he docu me nt s on 2nd October, 2023 vi a mail and dee me d t he m as dul y fil ed.b.The responde nt’ s advocat es i mme di atel y served t he appl i cant wi t h t he noti ce of appeal on t he sa me dat e but l at er requested t he court f or t he requi site recei pt s and t he dul y recei ved docu me nt s f or admi ni strati ve pur poses and t he court sent back st a mpe d docu me nt s on 4t h Oct ober 2023c.The appli cati on i s i n bad f ait h and the responde nt i s keen to pur sue its appeal

4. Whe n t he matt er ca me up bef ore us, t he appli cant was represent ed by l ear ned counsel Mr. Kere whil e lear ned counsel, Mr. Ki pkoech appeared f or t he responde nt.

5. I n a bri ef hi ghli ght , Mr. Ki pkoech ad mitted t hat at t he ti me of servi ng t he noti ce recei ved fro mt he regi stry, it had not recei ved the endorsed noti ce ho wever he e mphasi sed t hat the responde nt has al ready fil ed its appeal bef ore t hi s court seri ali sed as Ci vil Appeal No. 23 of 2024. He cont ended t hat t he noti ce of appeal was fil ed on time and t he grounds of appeal are st at ed i n t hei r Me mor andum of Appeal. On hi s part Mr. Kere mai nt ai ned t hat t he applicati on was meri ted and t hat an appeal l odged usi ng a f aul ty notice of appeal was inco mpet ent and had no l egs to st and on.

6. We have consi dered t he appli cati on, sub mi ssi ons made on behalf of t he respecti ve parti es and t he l aw. We have al so l ooked at t he annexed Noti ce of Appeal, whi ch i s subj ect of t he appli cati on f or our deter mi nati on. It is cl ear t he Noti ce of Appeal was fil ed wi t hi n t he st at ut ory peri od of 14 days, whi ch was to expi re on 4th Oct ober,C 2023. Secondl y, the pay me nt recei pt annext ed by t he responde nt sho ws t hat t he Not ice of Appeal, together wi t h t he l etter requesti ng f or typed proceedi ngs were pai d f or on 29th Sept e mber, 2023.

7. It i s cl ear beyond doubt t hat t he appeal agai nst t he i mpug ned Judg me nt was fil ed wi t h a Me mor andum of Appeal, whi ch cl earl y and correctl y st ates t he grounds bei ng appeal ed agai nst by t he responde nt. We don’ t underst and what t he appli cant i s co mpl ai ni ng about, as t he grounds of appeal are clear, preci se and to t he poi nt of gri evance by t he appell ant. Conseque ntl y, t he appli cati on has no meri t and it’ s di s mi ssed wi t h no or ders as to cost s.

DAT ED AND DELI VERED AT NAKUR U T HI S 25T H DAY OF OCT OBER 2024. M. WARSAME........................................…JUDGE OF APPEALM. GACHOKA CI ARB., FCI ARB........................................…JUDGE OF APPEALW. KORIR........................................…JUDGE OF APPEALI certif yt hat t hi s i s a tr ue copy of t he origi nal.SignedDEPUTY REGISTRARPage 1of 4