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Court of AppealPartially AllowedCivil Appeal (Appli.) 160 of 2007· [2008] KECA 151 (KLR)

JOHN KIMANI NJOROGE v SERAH NJERI MWOBI [2008] KECA 151 (KLR)

Court of Appeal of Kenya
25 July 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
599 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 notice of appeal was served late and backed by a false affidavit of service.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Tunoi, Githinji and Onyango Otieno, JJA) on a notice of motion brought under rule 80 of the Court of Appeal Rules seeking to strike out Civil Appeal No. 160 of 2007 on the ground that the notice of appeal dated 15th February 2007 was served out of time. The decision under challenge was a ruling of the High Court at Mombasa (Khaminwa, J) dated 8th February 2007 in H.C.C.C No. 90 of 1999. The respondent Serah Njeri Mwobi filed a notice of appeal on 15th February 2007. The applicant John Kimani Njoroge's counsel asserted that his firm was served only on 7th March 2007, outside the period prescribed by rule 76(1). The respondent relied on an affidavit of her process server, Peter Kahinga, claiming service on 16th February 2007 on the applicant's former advocates. On scrutiny, the Court found the affidavit facially defective: it was headed 'Court of Appeal', referred to Civil Appeal No. 16 of 2007, and was sworn on 20th February 2007 although the appeal was not filed until 9th July 2007. Counsel for the respondent conceded the errors. The Court held the affidavit false, rejected it, and deplored attempts to lodge false documents. The application was allowed: the notice of appeal and the appeal were struck out, with costs of both the motion and the appeal awarded to the applicant.

Key legal issues

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01

Whether the notice of appeal was served out of time under rule 76(1) of the Court of Appeal Rules

Holding

The Court found that the applicant's advocates were served on 7th March 2007, outside the period limited by rule 76(1), and that the respondent's affidavit of service claiming service on 16th February 2007 was false; accordingly the notice of appeal and the appeal were struck out.

Reasoning

The decision appealed against was delivered on 8th February 2007 and the notice of appeal was filed on 15th February 2007. The applicant's advocates were served on 7th March 2007, beyond the rule 76(1) window. The respondent's only evidence of earlier service was an affidavit riddled with facial errors - wrong court heading, wrong appeal number, and a swearing date of 20th February 2007 when the appeal was not filed until 9th July 2007. The Court rejected the affidavit as false, leaving the out-of-time service uncontroverted.

p. 2
02

The probative value of a facially defective affidavit of service

Holding

An affidavit that is erroneous on its face - misdescribing the court, the appeal number and the date of swearing - cannot sustain a claim of due service.

Reasoning

The Court scrutinised the affidavit of service and noted it was headed 'Court of Appeal' yet referred to Civil Appeal No. 16 of 2007, and was sworn on 20th February 2007 although the appeal sought to be struck out was not filed until 9th July 2007. Counsel for the respondent conceded from the bar that these errors were false. The Court held the affidavit could not resist the application, and deplored attempts to lodge false documents before it.

p. 2

Legal principles established

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  • Service of a notice of appeal must be effected within the period limited by rule 76(1) of the Court of Appeal Rules; a notice of appeal served outside that period is liable to be struck out under rule 80.
  • An application before the Court cannot be resisted by means of a falsified affidavit; false affidavits will be rejected and attempts to lodge false documents will be deplored.

Court orders

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  1. 1.The Notice of Appeal dated 15th February 2007 is struck out
  2. 2.Civil Appeal No. 160 of 2007 is struck out
  3. 3.The applicant is awarded the costs of the Notice of Motion and the struck out appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 76(1)
  • Court of Appeal Rulesrule 80
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 90 of 1999
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out an appeal), in the context of Civil Appeal No. 160 of 2007

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, "JOHN KIMANI NJOROGE v SERAH NJERI MWOBI [2008] KECA 151 (KLR)", Case Analysis (2008). Civil Appeal (Appli.) 160 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/151/eng@2008-07-25

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