Joseph Ngwele Nduswa v Ahmed Abubakar T/A Bajaber Service Station & another [1998] KECA 165 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice was mailed instead of personally served and the record was filed late without leave.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was effectively served on the respondents as required by rule 17(1) of the Court of Appeal Rules
- 2.Whether the record of appeal was filed out of time and whether the appellant could claim the benefit of the proviso to rule 81(1)
Key legal issues
#Service of the notice of appeal
Service by ordinary mail does not satisfy rule 17(1); personal service is mandatory unless the court directs otherwise, and no such direction was sought or obtained.
The appellant conceded the notice of appeal was never personally served and was only sent by ordinary mail, received by the respondent on 1st September 1997. Rule 17(1) mandates personal service unless the court otherwise directs, and no directions were sought. Consequently, no effective service occurred and an essential step in the appeal proceedings was left untaken, which is fatal to the appeal.
Filing of the record of appeal out of time
Because the letter bespeaking proceedings was not sent to the respondent within 30 days, the proviso to rule 81(1) did not apply and the record of appeal was filed out of time without leave.
The proviso to rule 81(1) only benefits an appellant who sends a copy of the letter bespeaking copies of proceedings and judgment to the respondent within 30 days. That was not done here. The record of appeal was therefore filed out of time and without leave. A pending reference to the full court against a dismissed extension-of-time application could not cure the defect, since no application for directions to serve otherwise than by rule 17(1) had been made.
Legal principles established
#- Rule 17(1) of the Court of Appeal Rules mandates personal service of the notice of appeal unless the court otherwise directs; service by ordinary mail is not effective service, and failure to effect it means an essential step in the appeal has not been taken.
- The benefit of the proviso to rule 81(1) is lost where the copy of the letter bespeaking copies of proceedings and judgment is not sent to the respondent within 30 days; the record of appeal filed thereafter is out of time and requires leave.
Court orders
#- 1.The appeal is struck out
- 2.The applicant (respondent to the appeal) is awarded the costs of the application and the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 3009 of 1989
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (rules 17(1) and 81(1))
Relief refused
#Continuation/prosecution of the appeal despite defective service and late filing
An essential step in the proceedings (personal service of the notice of appeal) was never taken, and the record of appeal was filed out of time without the benefit of the proviso to rule 81(1) or leave
Costs
The applicant (respondent to the appeal) will have the costs of the application and the costs of the appeal
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.
Rule 17(1) of the rules of this court mandates a personal service of such a document as the notice of appeal, unless otherwise directed and we are told no such directions have been or are sought.
The effective position therefore, is that to date there has been no effective service of the notice of appeal with the result that an essential step in the proceedings has not been taken.
The upshot of all this is that an essential step not having been taken the appeal is ordered struck out. The applicant (respondent to the appeal) will have costs of application and the costs of the appeal
Issues in the judgment
#The costs order contains duplicated/garbled text in the original judgment
The judgment is headed 'RULING OF THE COURT' although it determines the appeal itself by striking it out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ngwele Nduswa v Ahmed Abubakar T/A Bajaber Service Station & another [1998] KECA 165 (KLR)", Case Analysis (1998). Civil Appeal No. 287 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/165/eng@1998-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.