Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal 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)· [2009] KECA 200 (KLR)

DANIEL ODINDO WAGA v NABIL HASSAN [2009] KECA 200 (KLR)

Court of Appeal of Kenya
17 July 2009
1,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This Court of Appeal ruling at Kisumu (Bosire, Githinji and Nyamu, JJA) determined an application by Daniel Odindo Waga, the decree holder in Kisumu CMCC No. 738 of 1998, to strike out Civil Appeal No. 159 of 2008 filed by Nabil Hassan. Hassan, an objector to attachment of property Kisumu Municipality/Block 6/103, had failed before the High Court (Mugo, J.) in an application for leave to appeal, extension of time, and stay of sale; his appeal challenged those two decisions. The applicant argued the appeal was incompetent because Brenos Limited, the company to which the property had been sold in execution, was never served with the notice of appeal or record of appeal. The court held that the phrase 'directly affected by the appeal' in rule 76(1) of the Court of Appeal Rules has no technical meaning and is a question of fact, the test being whether success in the appeal would adversely affect the party. Because Hassan's paramount purpose was to recover the property now registered in Brenos Limited's name, and his application had included a preservation order over it, the company's interest was direct and service was mandatory. Non-participation in the proceedings below did not excuse non-service; Hassan should have sought a direction under the proviso to rule 76 dispensing with service. One established ground suffices for striking out, so the court did not consider the alleged omission of primary documents. The application was allowed, Civil Appeal No. 159 of 2008 was struck out as incompetent, and costs of both the application and the appeal were awarded to the applicant.

Key legal issues

#
01

Service on persons directly affected by an appeal under rule 76(1)

Holding

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.

Reasoning

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.

p. 2
02

Whether non-participation in proceedings below excuses service

Holding

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.

Reasoning

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.

p. 2
03

Whether the omission of primary documents from the record of appeal required determination

Holding

The court declined to consider this second ground, since one established ground suffices to strike out an appeal.

Reasoning

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.

p. 2

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. 1.Civil Appeal No. 159 of 2008 struck out as incompetent
  2. 2.Costs of both the application and the appeal awarded to the applicant/respondent in the appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder XXI rule 53
  • Court of Appeal RulesRule 76(1) and proviso to rule 76
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.

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.