Stephen Mugo Mutothori & Machithi Trout Farm Limited v Kenya Commercial Bank Ltd & Kenya Commercial Finance Ltd
The bottom line
#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
#Executive summary
#Key legal issues
#Service of notice of appeal on persons directly affected
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.
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.
Who determines whether service is necessary
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.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out as incompetent
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Saleh Awadh Salim v Respondent (Business Premises Rent Tribunal appeal - application for review of stay order)[2012] KEHC 5039 (KLR)23 Mar 2012applied
Cite this brief
#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.