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Court of AppealAllowedCivil Application No. 92 of 2019· [2020] KECA 452 (KLR)

Christina Margit Scheiber , Bernard Scheiber Trustees for Women for Women Community Based Organization v William Nyongesa Festo Lunyelekwe & another [2020] KECA 452 (KLR)

Court of Appeal
7 August 2020
AMA. K. MurgorJMJ. MohammedSKS. ole Kantai
824 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal because it said 'part of the decision' without stating which part.

What this practically means

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Executive summary

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The Court of Appeal (Murgor, J. Mohammed and ole Kantai, JJ.A) determined an application under rules 75 and 84 of the Court of Appeal Rules seeking to strike out the 1st respondent's Notice of Appeal lodged on 25th June 2019. The Notice was lodged in an intended appeal against the ruling of the High Court at Kitale (Chemetei, J) in HC Succ No. 14 of 2015. The applicants contended that the Notice contravened rule 75(3) because it did not follow Form D in the First Schedule and did not disclose the part of the ruling appealed against, rendering it a nullity and causing undue prejudice. The 1st respondent filed no replying affidavit or submissions despite service, while the 2nd respondent supported the application. The court held that rule 75(3), which is mandatory, requires a notice of appeal to state whether the appeal is against the whole or part of a decision and, where only part, to specify the part complained of. Relying on Kenya Revenue Authority vs Doshi Iron Mongers, the court reasoned that failure to particularize the part appealed against would ambush the other party and offend fair hearing. Since the 1st respondent's Notice referred only to 'part of the said Decision' without specification, it was incompetent and incapable of sustaining the appeal. The application was allowed and the Notice of Appeal struck out with costs to the applicant.

Key legal issues

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01

Compliance with rule 75(3) of the Court of Appeal Rules

Holding

The Notice of Appeal indicated an intention to appeal against part of the ruling but did not specify the part, contravening rule 75(3) and rendering it incompetent and incapable of sustaining the appeal.

Reasoning

Rule 75(3) requires a notice of appeal to state whether the appeal is against the whole or part of a decision, and where only part, to specify the part complained of. The requirement is mandatory. Its rationale, as explained in Kenya Revenue Authority vs Doshi Iron Mongers, is to prevent a party from ambushing opponents at the hearing by expanding the scope of appeal beyond what was specified. The 1st respondent's notice referred only to 'part of the said Decision' without particularization, causing prejudice and non-compliance.

p. 2

Legal principles established

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  • Where a party intends to appeal against only part of a decision, the notice of appeal must specifically particularize the part complained of; failure to do so renders the notice incompetent.
  • A notice of appeal that fails to specify the part of the decision appealed against would ambush the other party and offend the rules of fair hearing.

Court orders

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  1. 1.The application is allowed
  2. 2.The Notice of Appeal lodged on 25th June 2019 is struck out with costs to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 75(3)
  • Court of Appeal Rulesrule 84
  • Court of Appeal RulesFirst Schedule, Form D

Cases cited (1)

  • Kenya Revenue Authority vs Doshi Iron Mongers and another
    [2016] eKLR
On appeal from
High Court at Kitale
HC SUCC NO. 14 of 2015
Jurisdiction invoked
Rules 75 and 84 of the Court of Appeal Rules (appellate jurisdiction over competence of a Notice of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Christina Margit Scheiber , Bernard Scheiber Trustees for Women for Women Community Based Organization v William Nyongesa Festo Lunyelekwe & another [2020] KECA 452 (KLR)", Case Analysis (2020). Civil Application No. 92 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/452/eng@2020-08-07

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