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Court of AppealOtherCivil Appeal No. 228 of 2007· [2008] KECA 111 (KLR)

Mohamed T/A Kitale Autospares v Central Bank of Kenya & 2 others [2008] KECA 111 (KLR)

Court of Appeal of Kenya
9 October 2008
EOE. O. O'KubasuDAD. K. S. AganyanyaJAJ. Aluoch
1,088 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 served the record of appeal 12 days late, ending the case before it even started.

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 on an application dated 29th November 2007 by the Central Bank of Kenya seeking the striking out of the record of appeal lodged on 24th October 2007 in the appeal of Mohamed Hasham Ali t/a Kitale Autospares against the respondents. The application, made under rule 80 of the Court of Appeal Rules, was founded on the single ground that although the record was lodged on 24th October 2007, it was only served on the applicant's advocates on 19th November 2007, some 12 days beyond the 7-day period prescribed by rule 87. The appellant argued that service could not have been effected earlier because the applicant had not lodged a notice of address for service under rule 78, rendering the application incompetent. The court examined the record and found that the applicant's address for service was already stated in the Notice of Appeal, repeated in the Memorandum of Appeal, and also given by counsel for the first respondent. It therefore held that no burden lay on the applicant to prove notice of address, and that the rule 78 argument was an attempt to mislead the court. Finding no sufficient reason for the late service, the court struck out the record of appeal as incompetent and awarded costs to the applicant. The appeal from Warsame J's ruling of 22nd June 2007 was thereby extinguished at the threshold. The judgment is a single ruling of the full bench of three Judges of Appeal with no separate opinions.

Key legal issues

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01

Timeliness of service of the record of appeal under rules 78, 80 and 87 of the Court of Appeal Rules

Holding

Service of the record of appeal approximately 12 days beyond the prescribed 7-day period rendered it incompetent, and the arguments based on rule 78 failed because the applicant's address for service was already known and appeared on the Notice of Appeal, the Memorandum of Appeal and the record itself.

Reasoning

Rule 87(1) requires an appellant to serve the memorandum and record of appeal on each respondent within 7 days of lodging, where the respondent has complied with rule 78. Rule 80 allows dismissal where an essential step is not taken within the prescribed time. The court found the applicant's address for service stated in the Notice of Appeal and the record, so no rule 78 notice was needed; the respondents' submissions could only apply if the applicant had instructed new counsel. Late service by about 12 days was unexplained.

p. 3
02

Effect of non-compliance with rule 78 by a respondent seeking to strike out a record of appeal

Holding

A party whose address for service is already disclosed cannot invoke another party's failure to lodge a rule 78 notice; the burden of showing notice was dispensed with on the facts.

Reasoning

The Notice of Appeal at page 205 of the record gave counsel's address for the applicant; the Memorandum of Appeal bore the same address, and counsel for the first respondent also gave that address in the record. The court held that with such information, no burden lay on the applicant to prove it had given notice of address for service, and the respondents' rule 78 argument was misleading.

p. 3

Legal principles established

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  • An appellant must serve the record of appeal on each respondent within 7 days of lodging it, where the respondent has complied with rule 78; service outside that period renders the record of appeal incompetent and liable to be struck out under rule 80.
  • Where an appellant's address for service is already known or evident on the record, a respondent cannot rely on the absence of a rule 78 notice of address for service to justify late service of the record of appeal.

Court orders

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  1. 1.The record of appeal lodged on 24th October 2007 is struck out
  2. 2.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 87(1) and (2)
  • Court of Appeal Rulesrule 78(1)(a) and (b)
  • Court of Appeal Rulesrule 80
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 960 of 2007
Jurisdiction invoked
Court of Appeal Rules, rule 80 (application for dismissal of appeal where an essential step has not been taken within the prescribed time)

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, "Mohamed T/A Kitale Autospares v Central Bank of Kenya & 2 others [2008] KECA 111 (KLR)", Case Analysis (2008). Civil Appeal No. 228 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/111/eng@2008-10-09

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