Yashvin A. Shretta v Vadag Establishment [1999] KECA 49 (KLR)

The court held the rule admits of no ambiguity: an intending appellant must serve all persons directly affected before or within seven days of lodging the notice of appeal. Where a party took no part in the proceedings below, the appellant may apply under the proviso for directions, but cannot unilaterally decide who need not be served. This has been the consistent position since Peter Martin Ahn v Wairimu Openda (1981) and Roboi Holdings Ltd v Kantilal Holdings Ltd (1983).

The court reproduced the earlier ruling in Civil Application No. NAI 39 of 1999 explaining that the Trade Bank passage concerned an application to strike out an appeal for a composite notice under rules 74(1) and 79(1), had nothing to do with rule 76(1), and in any event all parties, even those not directly affected, had been served. Counsel's reading of the 'pivotal issue' test was therefore misconceived.

The applicant never alleged a mistake; he relied on alleged misinterpretation of the rule and the 'pivotal issue' concept. Distinguishing Belinda Murai v Amos Wainaina, the court held that simply reading the Rules would have put counsel right, and that ignorance is not a genuine mistake. A deliberate omission cannot attract the court's compassion, and a single judge cannot review or reverse an earlier decision of the Court on the point.

Adopting Lakha JA's statement in Maccu Motors, the court identified the reason for the omission as the predominant consideration, alongside prejudice to the successful party and public interest in finality of litigation. The applicant, a 10% shareholder, had kept out majority shareholders and occasioned grave losses to the company for nearly three years; his conduct was reprehensible and he did not deserve the exercise of discretion in his favour.