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Court of AppealAllowedCivil Appeal (Appli) 86 of 2005· [2006] KECA 92 (KLR)

FREDRICK GIKANDI v CEDRIC MARIO DE SOUZA & another [2006] KECA 92 (KLR)

Court of Appeal of Kenya
13 October 2006
ROR. S. C. OmoloSBS. E. O. BosireJOJ. W. Onyango Otieno
1,146 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the appellant never personally served a notice of appeal on every party involved.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Omolo, Bosire and Onyango Otieno, JJA) on a notice of motion dated 6th April 2005 by Dr. Fredrick Gikandi seeking to strike out the notice of appeal lodged on 3rd June 2004 and the memorandum and record of appeal lodged by Cedric Mario De Souza against him and The Mombasa Hospital, the appeal having been brought from a ruling of the High Court at Mombasa (Sergon, J) of 15th April 2004 in H.C.C.C No. 608 of 2000. The applicant advanced seven grounds, but counsel for the applicant pressed only the ground of non-service of the notice of appeal, leaving the rest to the court. The respondent contended that the applicant's advocates must have been served, as evidenced by their notice of change of address for service, and that the second respondent raised no complaint. The court rejected the inference: the change of address was prompted by a notice of change of advocates, and each interested party must be served individually, with the burden on the respondent to prove it. The annexed affidavit of service proved only service of the record of appeal, not the notice of appeal. The court held non-service of the notice of appeal fatal, as the notice is what gives the court jurisdiction and initiates the appeal, and struck out the notice of appeal and record of appeal, awarding the applicant costs of the application and of the struck-out appeal. The underlying High Court decision was not disturbed; the appeal itself was extinguished.

Key legal issues

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01

Whether the notice of appeal was served on the applicant

Holding

There was no proof of service of the notice of appeal on the applicant; the affidavit and annexures proved only service of the record of appeal, which was not the subject of the complaint.

Reasoning

The court rejected the contention that service could be inferred from the filing of a notice of change of address for service, holding that the change of address was prompted by a notice of change of advocates served on the applicant. The process server's affidavit related only to service of the record of appeal on 10th March 2005. The applicant's claim of non-service stood unrebutted by acceptable evidence.

p. 2
02

Whether non-service of the notice of appeal warrants striking out the appeal

Holding

Non-service of the notice of appeal is fatal because the notice of appeal is what gives the Court jurisdiction and initiates the appeal; consequently the notice and record of appeal were struck out.

Reasoning

The court reasoned that jurisdiction is founded on the notice of appeal, and where the mandatory requirement of service under rule 76(1) is not complied with, the court has no alternative but to strike out the notice of appeal and, with it, the record of appeal.

p. 3
03

Whether the letter seeking proceedings required service on the applicant

Holding

The letter seeking proceedings need not be served; it suffices that it was copied to and sent to the interested party.

Reasoning

The court read the applicable rule as requiring only that the letter seeking proceedings be sent to the interested party, not personally served. Where it is shown the letter was copied to the applicant and sent, that satisfies the rule. This ground therefore did not independently justify striking out, though the fatal defect of non-service of the notice of appeal did.

p. 2

Legal principles established

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  • Non-service of the notice of appeal on an interested party is fatal to the appeal, because the notice of appeal is what confers jurisdiction on the Court of Appeal and initiates the appeal.
  • Each interested party is entitled to be served individually and an appellant bears the duty to show that each interested party was served; service on one respondent cannot be inferred from the absence of complaint by another.
  • The letter seeking proceedings need only be sent to the interested party, not personally served, provided it is shown to have been copied to and sent to that party.

Court orders

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  1. 1.The notice of appeal lodged on 3rd June 2004 is struck out
  2. 2.The record of appeal is struck out
  3. 3.The applicant shall have costs of this application and of the struck-out appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 76(1)
  • Court of Appeal Rulesrule 81(2)
  • Court of Appeal Rulesrule 87(1)
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 608 of 2000
Jurisdiction invoked
Court of Appeal Rules, particularly rules 76(1), 81(2) and 87(1), invoked in an application to strike out a notice of appeal and appeal

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, "FREDRICK GIKANDI v CEDRIC MARIO DE SOUZA & another [2006] KECA 92 (KLR)", Case Analysis (2006). Civil Appeal (Appli) 86 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/92/eng@2006-10-13

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