DANIEL ODINDO WAGA v NABIL HASSAN [2009] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant failed to serve a company whose property was at stake, proving service on all affected parties is mandatory.
What this practically means
#Executive summary
#Key legal issues
#Service on persons directly affected by an appeal under rule 76(1)
Brenos Limited, the registered proprietor of the property whose sale the appeal sought to challenge, was directly affected and had to be served; non-service rendered the appeal incompetent.
The appellant's purpose in appealing was to pave the way to recover property sold in execution and now registered in Brenos Limited's name; his application had included a prayer for a preservation order over the property. The phrase 'directly affected' has no technical meaning and is a question of fact: the court asks whether success in the appeal would adversely affect the party. Brenos Limited's interest was therefore not far-fetched, and the failure to serve it, or to obtain a direction dispensing with service, was fatal.
Whether non-participation in proceedings below excuses service
No. Even if a party took no part in the proceedings giving rise to the order appealed against, it remains entitled to service unless the appellant obtains a direction excusing service.
The appellant argued Brenos Limited never took part in the superior court proceedings. The court held that this did not excuse non-service: the appellant should have moved the court under the proviso to rule 76 for a direction that service need not be effected on the company. Absent such a direction, the obligation to serve all persons directly affected stood, and its breach rendered the appeal incompetent.
Whether the omission of primary documents from the record of appeal required determination
The court declined to consider this second ground, since one established ground suffices to strike out an appeal.
The applicant also argued the record of appeal omitted certain primary documents. Having found the appeal incompetent for non-service, the court saw no necessity to consider that ground, stating that a single established ground is sufficient to entitle the court to strike out an appeal. The second ground was therefore left undetermined.
Legal principles established
#- A person directly affected by an appeal must be served with the notice of appeal and record of appeal; failure to do so renders the appeal incompetent and liable to be struck out
- Whether a party is 'directly affected by the appeal' is a question of fact; the test is whether the appeal's success would adversely affect that party
- A party who did not participate in proceedings below is still entitled to service unless the appellant obtains a direction that service need not be effected
- One established ground suffices to entitle the court to strike out an appeal
Court orders
#- 1.Civil Appeal No. 159 of 2008 struck out as incompetent
- 2.Costs of both the application and the appeal awarded to the applicant/respondent in the appeal
- On appeal from
- High Court of Kenya at Kisumu
- H.C. Misc. Civil Application No. 120 of 2007
- Jurisdiction invoked
- Rule 76(1) of the Court of Appeal Rules (application to strike out an appeal under the Court's Rules); the underlying matter arose from objection proceedings under Order XXI rule 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Green Power Generation Company Limited v Kenya Power & Lighting Company Ltd & another (Civil Application E048 of 2020) [2024] KECA 718 (KLR)[2024] KECA 718 (KLR)21 Jun 2024
- Joseph Kiangoi v Wachira Waruru, Standard Newspapers Limited & Lilian Mogendi[2010] KECA 492 (KLR)9 Jul 2010applied
- MOSES NYAMBEGA v LAWRENCE TATIYIA SEMPELE [2009] KECA 149 (KLR)[2009] KECA 149 (KLR)9 Oct 2009followed
Cite this brief
#Cite this brief
Caselaw, "DANIEL ODINDO WAGA v NABIL HASSAN [2009] KECA 200 (KLR)", Case Analysis (2009). Criminal Appeal 87 & 88 of 2005 (application to strike out Notice of Appeal dated 18th December 2007 and Record of Appeal filed 21st July 2008; arising from Civil Appeal No. 159 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/200/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.