Carter & Sons Ltd v Kenya Finance Corporation Limited & Pepco Construction Company Limited
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant failed to serve the notice of appeal on a company whose interests the appeal would directly affect.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Karugu Contractors (Kenya) Ltd was a person directly affected by the appeal within the meaning of rule 76(1) of the Court of Appeal Rules and therefore entitled to service of the notice of appeal
- 2.Whether the appellant's failure to serve the notice of appeal on Karugu Contractors warranted striking out the appeal under rule 80
Key legal issues
#Whether Karugu Contractors was a person directly affected by the appeal under rule 76(1) of the Court of Appeal Rules
Karugu Contractors was directly affected because the decree was joint and several and the stay order protected it from execution; it therefore had to be served with the notice of appeal.
The appeal was against the stay order made by Shields, J. That order stayed execution of the damages awarded against all three defendants, whose liability was joint and several. While the order remained in force, no execution could be levied against Karugu Contractors - an advantage it acquired without participating in the stay application. That benefit could not be altered to its detriment without involving it in the process, so it was a person directly affected by the appeal.
Consequence of failure to serve the notice of appeal on a person directly affected
Failure to serve, absent an application to dispense with service under the proviso to rule 76(1), justified striking out the appeal under rule 80.
Rule 76(1) requires an intended appellant to serve copies of the notice of appeal on all persons directly affected by the appeal, with a proviso allowing the court to dispense with service on a person who took no part in the proceedings below. Karugu Contractors took part in the proceedings and a decree was passed against it. No service was effected and no application was made to dispense with service, so the appeal was struck out.
Legal principles established
#- A party against whom a decree was passed jointly and severally, and who benefits from an order for stay of execution, is a person directly affected by an appeal challenging that order and must be served with the notice of appeal under rule 76(1).
- An order favourable to a party cannot be challenged on appeal without that party being accorded an opportunity of being heard.
Court orders
#- 1.Civil Appeal No. 62 of 1993 struck out
- 2.No order as to costs on the appeal
- 3.Second respondent deprived of its costs on the motion because of a delay of more than 3 years in bringing the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5638 of 1989
- Jurisdiction invoked
- Appeal from a ruling and order of the High Court; motion under rule 80 of the Court of Appeal Rules
Relief refused
#Second respondent's costs of the motion
Delay of more than 3 years in bringing the application
Costs
Civil Appeal No. 62 of 1993 struck out with no order as to costs; the second respondent deprived of its costs on the motion due to a delay of more than 3 years in bringing the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The object of the rule and of the proviso is that the rights of a party likely to be directly affected by the result of an appeal should not be affected without the party being provided with an opportunity of being heard.
We are accordingly satisfied that Karugu Contractors is a person directly affected by the appeal and should have been served with the notice of appeal.
And as no service was effected, and no application was made to dispense with service on Karugu Contractors, we grant the application and order that Civil Appeal No.62 of 1993, be and is hereby struck out with no order as to costs.
Issues in the judgment
#Typographical error in the coram signature block: 'JUDGE F APPEAL' appears instead of 'JUDGE OF APPEAL' for A. B. Shah.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carter & Sons Ltd v Kenya Finance Corporation Limited & Pepco Construction Company Limited", Case Analysis (1996). Civil Appeal No. 62 of 1993. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.