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Court of AppealPartially AllowedCivil Appeal (Application) No. 4 of 2011· [2014] KECA 764 (KLR)

Nathan Muhatia Pala T/A Muhatia Pala Auctioneers & another v Joseph Nyaga Karingi [2014] KECA 764 (KLR)

Court of Appeal of Kenya
21 January 2014
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out one appellant's appeal for missing paperwork but let the properly-filed co-appellant's appeal continue to a full hearing.

What this practically means

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Executive summary

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The respondent Joseph Nyaga Karingi, a protected tenant whose goods were distressed and who was allegedly evicted, obtained Kshs. 1,847,906/= in damages from the High Court at Embu (Khaminwa, J.) on 9th February 2009. The 2nd appellant lodged a Notice of Appeal and a Record of Appeal; the 1st appellant, his auctioneer agent, was included in the Record of Appeal without filing his own Notice of Appeal. The respondent applied under Rules 83 and 87(1)(j) of the Court of Appeal Rules for dismissal of the appeal, contending the 1st appellant's failure to file a Notice of Appeal and the non-conformity of the appeal documents rendered the appeal a nullity, relying on the Supreme Court's decision in Raila Odinga v IEBC and Shabani v NBC Holding Corporation. The appellants conceded the 1st appellant filed no Notice of Appeal but urged reliance on Article 159 of the Constitution and Rule 84. The Court held Rule 83 inapplicable, since it addresses a party who lodged a Notice of Appeal but failed to file a Record of Appeal in time, whereas the 2nd appellant had complied with all lodging requirements within time. Applying Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d), and following Deepak Chamanlal Kamani v KACC on the overriding objective, the Court held that dismissing the entire appeal would not serve a just, expeditious, proportionate and affordable resolution. The application was allowed in part: the 1st appellant's appeal was struck out and the 2nd appellant's appeal was sustained to proceed to hearing, with costs of the application to abide the outcome of the appeal. The High Court judgment itself was not disturbed.

Key legal issues

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01

Applicability of Rule 83 of the Court of Appeal Rules

Holding

Rule 83 was inapplicable because the 1st appellant never filed a Notice of Appeal, while the 2nd appellant filed both a Notice and Record of Appeal within time

Reasoning

Rule 83 governs a party who lodged a Notice of Appeal but failed to institute the appeal by filing the Record of Appeal in time. Here the 1st appellant filed no Notice of Appeal at all, and the 2nd appellant's Record was filed within time when the certificate of delay period was excluded. The rule therefore had no application to either appellant.

p. 2
02

Effect of a non-appealing party's inclusion in another party's appeal

Holding

The 1st appellant's inclusion in the Record of Appeal without a Notice of Appeal did not render the 2nd appellant's competent appeal incurably defective; only the 1st appellant's appeal was struck out

Reasoning

Applying Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, the court adopted the overriding objective: dismissal of the whole appeal would not further a just, expeditious, proportionate and affordable resolution since the 2nd appellant had complied with all lodging requirements. The defective position of the 1st appellant was cured by severing him from the appeal.

p. 3

Legal principles established

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  • Where one appellant has fully complied with the requirements of lodging an appeal, the non-compliance of a co-appellant who filed no Notice of Appeal warrants striking out only that co-appellant's appeal, not dismissal of the competent appeal.
  • Under the overriding objective, courts must not automatically strike out a pleading or appeal but must first consider alternatives more consonant with the overriding objective.

Court orders

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  1. 1.The application dated 18th July 2013 is allowed in part
  2. 2.The 1st appellant's appeal is struck out
  3. 3.The 2nd appellant's appeal to proceed for hearing
  4. 4.Costs of the application shall abide by the outcome of the appeal
On appeal from
High Court of Kenya at Embu
H.C.C.C No. 33 of 2004
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9), application under Rules 83 & 87(1)(j) of the Court of Appeal Rules

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, "Nathan Muhatia Pala T/A Muhatia Pala Auctioneers & another v Joseph Nyaga Karingi [2014] KECA 764 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 4 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/764/eng@2014-01-21

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