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Court of AppealAllowedNot stated in the judgment

Felix Mathenge v Kenya Power & Lighting Company Limited [2002] KECA 141 (KLR)

Court of Appeal of Kenya
16 October 2002
115 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that anyone directly affected by an appeal must receive the appeal papers, even if they skipped the earlier case.

What this practically means

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Executive summary

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This document is the concluding portion of a short interlocutory ruling of the Court of Appeal delivered at Nairobi on 16 October 2002 by A.B. Shah, Judge of Appeal, the only judge named in the document. The appeal itself is not identified: the text carries no caption, case number, or party names, and neither the appellant nor the respondent is named anywhere in it. What can be discerned is that an appeal was intended against a decision of an unnamed court below, that a notice of appeal had been lodged on 24 June 2002, and that the respondent had taken no part in the proceedings in that court. The governing consideration is stated in a single sentence of policy: although the respondent had not participated below, the policy of the Court is to ensure that all parties are before it, because the respondent is an entity directly affected by the intended appeal. On that basis the court made two service directions: the notice of appeal lodged on 24 June 2002 was to be served on the respondent within seven days, and the record of appeal could also be served within the same period. On costs the court ordered simply that costs would be in the appeal, reserving the question to the hearing of the appeal rather than awarding costs on the direction. No decision of the court below was reviewed, affirmed, or disturbed; the ruling is purely procedural. No statute and no case authority is cited, and there is no separate opinion or dissent. Its value for practitioners lies in the stated policy that a party directly affected by an intended appeal must be brought before the Court by service of the appellate process, even where that party did not participate in the proceedings below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal and the record of appeal should be served on a respondent who did not take part in the proceedings in the court below.
  2. 2.What costs order should issue on the direction.

Key legal issues

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01

Service of the notice of appeal and the record of appeal on a respondent who did not participate in the proceedings below.

Holding

The court directed that the notice of appeal lodged on 24th June 2002 be served on the respondent within seven days, and that the record of appeal may also be served within the same period, because the respondent is directly affected by the intended appeal.

Reasoning

The court reasoned from its stated policy that all parties should be before it when an appeal is prosecuted. Although the respondent chose not to take part in the proceedings in the court below, the respondent remains an entity directly affected by the intended appeal, and fairness requires that it be notified of the appeal and given the opportunity to participate. The court therefore exercised its directional powers to order service of both the notice of appeal and the record of appeal within seven days, while reserving the question of costs to the appeal itself.

p. 2

Legal principles established

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  • A respondent who did not take part in the proceedings below but is directly affected by an intended appeal must be served with the notice of appeal and the record of appeal, because the Court's policy is to ensure that all parties are before it.

Court orders

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  1. 1.The notice of appeal lodged on 24th June 2002 to be served on the respondent within the next seven days.
  2. 2.The record of appeal to be served upon the respondent within the same seven-day period.
  3. 3.Costs in the appeal (costs of the direction reserved to the hearing of the appeal).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not stated in the judgment; the directions were made in the Court of Appeal's appellate jurisdiction and no constitutional or statutory provision is cited in the ruling.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Although the respondent did not take part in the proceedings in the court below the policy of this Court is to see to it that all the parties are before it.
p. 2Policy that all parties be before the Court
The respondent is an entity directly affected by the intended appeal.
p. 2Respondent's direct interest in the intended appeal
I direct that the notice of appeal lodged on 24th day of June, 2002 be served on the respondent within the next seven days.
p. 2Final orders - direction for service of the notice of appeal
The record of appeal may also be served upon the respondent within the said period.
p. 2Final orders - service of the record of appeal
Costs in the appeal.
p. 2Final orders - costs reserved to the appeal

Issues in the judgment

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material

The document supplied is a fragment of the ruling: it contains no caption, case number, or party names, and begins and ends abruptly, so neither the case nor the parties can be identified from the judgment itself.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Felix Mathenge v Kenya Power & Lighting Company Limited [2002] KECA 141 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/141/eng@2002-10-16

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