Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appli 42 of 2006 (UR 23/2006)· [2009] KECA 389 (KLR)

Patrick Mukiri Kabundu v Ruth Wakonyo Kabundu & 4 others [2009] KECA 389 (KLR)

Court of Appeal of Kenya
13 February 2009
EOE.O. O'KubasuJOJ.W. Onyango OtienoDAD.K.S. Aganyanya
983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out a notice of appeal because the appellant failed to serve and cite every party directly affected by the appeal.

What this practically means

#

Executive summary

#
This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a Notice of Motion by Patrick Mukiri Kabundu, acting in person, seeking to strike out a Notice of Appeal filed on 25th October 2005 by the 1st respondent, Ruth Wakonyo Kabundu. The application was brought under Rules 42, 43, 74, 80, 81 and 85 of the Court of Appeal Rules, on grounds that the notice was incurably defective in substance and form and that essential steps after filing had not been taken. The motion arose from a ruling of the High Court (Ojwang, J.) dated 14th October 2006 in H.C.C.C. No. 649 of 1996. The 1st respondent did not appear at the hearing despite service on her advocates; the 5th respondent supported the striking out on the ground that Kabundu Holdings Ltd., the 1st plaintiff below, had not been served with the notice of appeal. The court identified rule 76(1) as the starting point, requiring service of the notice of appeal on all persons directly affected. The notice cited only three parties for service and made no mention of Kabundu Holdings Ltd., contrary to rule 74(3) which requires all parties to be served to be cited in the notice. The court found it inconsistent for the process server to claim service on the company through its Managing Director when there was no intention to serve the company. The application was allowed, the notice of appeal was struck out, and there were no orders as to costs of the application. The binding effect is that an intended appellant must cite and serve every party directly affected by the appeal, failing which the notice is liable to be struck out.

Key legal issues

#
01

Service of the notice of appeal on all persons directly affected

Holding

The notice of appeal was defective because Kabundu Holdings Ltd., the 1st plaintiff in the superior court and a person directly affected, was not cited as a party to be served, contrary to rules 76(1) and 74(3).

Reasoning

Rule 76(1) requires service of the notice of appeal on all persons directly affected by the appeal, with a proviso allowing the court to dispense with service on application. Rule 74(3) requires all parties to be served to be cited in the notice. The notice here listed only three individuals/firms and made no mention of Kabundu Holdings Ltd., showing no intention to serve the company. The process server's affidavit claiming service on the company through its Managing Director was inconsistent with that lack of intention, and the applicant himself was the person served. The application was therefore merited and the notice was struck out.

p. 3

Legal principles established

#
  • An intended appellant must, before or within 7 days after lodging a notice of appeal, serve copies on all persons directly affected by the appeal, and all parties to be served must be cited in the Notice of Appeal; failure to cite a directly affected party renders the notice liable to be struck out.
  • Rule 74(3) of the Court of Appeal Rules requires that all parties to be served be cited in the Notice of Appeal, and a notice of appeal that omits a party to the suit is defective.

Court orders

#
  1. 1.The Notice of Appeal filed on 25th October, 2005 by the 1st respondent is struck out
  2. 2.No orders as to the costs of the application

Authorities

#

Legislation

  • Court of Appeal RulesRule 76(1)
  • Court of Appeal RulesRule 74(3)
  • Court of Appeal RulesRules 42, 43, 74, 80, 81 & 85
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 649 of 1996
Jurisdiction invoked
Rules 42, 43, 74, 80, 81 & 85 of the Court of Appeal Rules (application to strike out a Notice of Appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Mukiri Kabundu v Ruth Wakonyo Kabundu & 4 others [2009] KECA 389 (KLR)", Case Analysis (2009). Civil Appli 42 of 2006 (UR 23/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/389/eng@2009-02-13

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