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Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal (Application) No 205 of 2000· [2001] KECA 373 (KLR)

Stephen Mugo Mutothori & Machithi Trout Farm Limited v Kenya Commercial Bank Ltd & Kenya Commercial Finance Ltd

Court of Appeal
30 March 2001
1,319 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellant failed to serve the notice of appeal on everyone named in the decision being appealed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Bosire and O'Kubasu JJ A) on a motion under rule 80 of the Court of Appeal Rules seeking to strike out the appellants' appeal as incompetent. The appeal arose from two consolidated High Court suits (HCCC Nos 2245 and 2382 of 1991) concerning LR No 3452/1 (IR 4123), Nyeri, charged to the respondents to secure credit facilities to Machithi Trout Farm Limited. A re-amended plaint introduced Priscilla Wangari Mugo as 3rd defendant, though no orders were specifically sought against her. The respondents applied to strike out the appeal because she was not served with the notice of appeal; counsel for the appellants conceded non-service, arguing she was never regularly joined as a party. The Court held that under the mandatory rule 76(1), an intended appellant must either serve all persons prima facie directly affected or apply for dispensation of service, and that the choice is the Court's, not the appellant's. Since her name appeared on the decision appealed from, she was prima facie a person directly affected, and the Court would not go behind the record to test the regularity of her joinder at that stage. Following Vadag Establishment v Yashvin Shretta, the Court struck out the appeal as incompetent and made no order as to costs, citing events involving the respondents' counsel preceding the order appealed from.

Key legal issues

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01

Service of notice of appeal on persons directly affected

Holding

Rule 76(1) is mandatory; a named party on the face of the decision appealed from is prima facie a person directly affected, and the appellant must either serve her or seek dispensation from the Court.

Reasoning

The Court held it could not, on a striking-out application, scrutinise whether the 3rd defendant's joinder was regular; it acts only on what prima facie appears from the record. Her name appeared in the decision appealed from, so she was prima facie affected. The appellants conceded non-service and never sought dispensation, breaching the mandatory rule, so the appeal was incompetent.

p. 2
02

Who determines whether service is necessary

Holding

Only the Court, exercising judicial discretion under the proviso to rule 76(1), may dispense with service on a party who took no part in the proceedings below.

Reasoning

The Court adopted its earlier decision in Vadag Establishment v Yashvin Shretta, holding that the proviso vests the dispensation power in the Court, which assesses whether the justice of the intended appeal requires that a particular party be notified. An appellant cannot unilaterally decide that a named party need not be served.

p. 3

Legal principles established

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  • An intended appellant must either serve the notice of appeal on all persons prima facie directly affected or apply for dispensation of service; the choice is not the appellant's.
  • Failure to serve a person directly affected with the notice of appeal, without dispensation, renders the appeal incompetent.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 76(1)
  • Court of Appeal Rulesrule 80
  • Civil Procedure Rulesorder I rule 10

Cases cited (1)

  • Vadag Establishment v Yashvin Shretta
    Civil Application No NAI 39 of 1999 (unreported)

    It is not for the appellant to decide who should be served with the notice of appeal; that power lies with the Court.

On appeal from
High Court of Kenya at Nairobi (Milimani Commercial Court)
HCCC No 2245 of 1991
Jurisdiction invoked
Court of Appeal Rules, rule 80 (application to strike out appeal) and rule 76(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Mugo Mutothori & Machithi Trout Farm Limited v Kenya Commercial Bank Ltd & Kenya Commercial Finance Ltd", Case Analysis (2001). Civil Appeal (Application) No 205 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/373/eng@2001-03-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.