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Court of AppealPartially AllowedCivil Application No. NAI 241 of 2017· [2018] KECA 872 (KLR)

Hon. Justus Aloo Ogeka & 6 Others v Kenya Union of Commercial Food and Allied Workers

Court of Appeal
26 January 2018
RNR. N. NambuyeDMD. K. MusingaAMA. K. Murgor
2,754 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 a union's appeal because it never served the notice of appeal on the winning parties, confirming service is mandatory.

What this practically means

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Executive summary

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The applicants, officials of the proposed Kenya National Union of Cooperative Staff, moved the Court of Appeal under rules 4, 47, 83 and 84 of the Court of Appeal Rules 2010 to strike out a notice of appeal filed by the Kenya Union of Commercial Food and Allied Workers against a judgment of the Employment and Labour Relations Court (Ndolo, J.) delivered on 22nd January 2016, which had ordered the immediate registration of their union. The respondent had filed the notice on 25th January 2016, obtained a stay of execution, but never filed a record of appeal. The applicants contended that the notice and the request for proceedings were never served on them, and that the 60-day period for instituting the appeal had long lapsed. The respondent blamed the registry's failure to supply typed proceedings and alleged the applicants' advocates refused to stamp the documents. The court held that service of a notice of appeal on all directly affected parties is a mandatory requirement rooted in Article 50(1) of the Constitution; without any return of service or evidence of refusal, the only conclusion was that service never occurred, rendering the notice incompetent. Further, because the request for proceedings was not served, the respondent could not invoke the proviso to rule 82(1) to exclude the preparation period, so the record had to be filed within 60 days, which it was not. The notice of appeal was struck out with costs to the applicants.

Key legal issues

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01

Service of the notice of appeal on parties directly affected

Holding

The notice of appeal and request for proceedings were never served on the applicants or their advocates; no return of service or evidence of refusal of service was produced, rendering the notice incompetent.

Reasoning

Rule 77 requires service on all persons directly affected within seven days of lodging the notice. The object, per Sheikh vs Sheikh, is to guarantee affected parties an opportunity to be heard, a right anchored in Article 50(1) of the Constitution. The notice bore the wrong address, and the respondent produced no return of service or evidence that the applicants refused service. Service being a prerequisite of fair hearing, its absence condemned the applicants unheard and rendered the notice incompetent.

p. 5
02

Filing of the record of appeal within 60 days

Holding

Because the request for proceedings was not served, the proviso to rule 82(1) could not be invoked; the record had to be filed within 60 days, and it was not, so the intended appeal was incompetent.

Reasoning

Rule 82(2) conditions reliance on the proviso excluding the preparation period on the request for copies being in writing and served on the respondent. The respondent failed to serve it, so the preparation period could not be excluded and the 60-day period ran from the notice of appeal. The record was never filed; by the date of the application, 1 year and 9 months had elapsed, far beyond the stipulated period.

p. 5

Legal principles established

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  • Failure to serve a notice of appeal on parties directly affected renders the notice, and the appeal itself, incompetent and liable to be struck out.
  • An appellant who fails to serve the request for proceedings on the respondent cannot rely on the proviso to rule 82(1) to exclude the preparation period, and must file the record of appeal within 60 days.

Court orders

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  1. 1.The notice of appeal dated 25th January 2016 and filed on the same day is struck out with costs to the applicants

Authorities

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Legislation

  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 47
  • Court of Appeal Rules 2010Rule 83
  • Court of Appeal Rules 2010Rule 84
  • Court of Appeal Rules 2010Rule 77(1)
  • Court of Appeal Rules 2010Rule 82(1) and proviso
  • Court of Appeal Rules 2010Rule 82(2)
  • Constitution of Kenya 2010Article 50(1)
  • Appellate Jurisdiction Act

Cases cited (3)

  • Sheikh vs Sheikh
    [1985] KLR 649

    Object of the rule requiring service of notice of appeal on parties directly affected - right to be heard.

  • Mradula Suresh Kantaria vs Suresh Nanalal Kantaria
    Civil Appeal (Application) No. 277 of 2005

    Failure to serve notice of appeal renders it and the record incompetent; rule rooted in constitutional due process.

  • Elizabeth Wanjiku Muchai vs The Standard Limited
    [2017] eKLR

    Cited by applicants' counsel for the proposition that failure to pursue proceedings shows lack of interest in an appeal.

On appeal from
Employment and Labour Relations Court
Employment & Labour Relations Appeal No. 1A of 2012
Jurisdiction invoked
Rules 4, 47, 83 and 84 of the Court of Appeal Rules 2010 (Appellate Jurisdiction Act)

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, "Hon. Justus Aloo Ogeka & 6 Others v Kenya Union of Commercial Food and Allied Workers", Case Analysis (2018). Civil Application No. NAI 241 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/872/eng@2018-01-26

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