Benson Ngugi Muiruri v Kenya National Capital Corporation Limited

Rule 74 of the Court of Appeal Rules governs the filing of a notice of appeal and rule 76 governs its service; the two are different steps in an intended appeal. Where a notice is filed out of time and the Court extends time for filing, it cannot be assumed that the deeming order also covers service. Here the extension order was silent on service, and there was no evidence the appellant had prayed for an order deeming service effected. Since the striking out rested on this ground, it is the ratio of the decision.

The Court accepted that a draft notice of appeal was given to the respondent and received on 14th October 1998, but it was given as an annexture to the application for extension of time. Service before lodgment is recognised only if the notice of appeal is filed as prescribed in the rule. Because the notice was not filed on time and the Court was asked to extend time for filing, it could not be assumed that the order deeming the notice filed also covered service.

The Court rejected this ground, holding that certification is required only for the order or decree from which the appeal has been brought. The orders of 5th April 2000 and 2nd October 2000 were not the orders appealed from, so their inclusion in the record without certification was not a defect. This ground did not drive the outcome, which turned entirely on the failure to serve the notice of appeal.

The Court held that non-inclusion of documents outside the primary category is not fatal to an appeal because they may be brought on record with leave by way of a supplementary record of appeal. Like the certification point, this ground lacked merit and formed no part of the basis for striking out the appeal, which rested solely on the failure to serve the notice of appeal as required by rule 76(1).