Ecobank Kenya Limited v Samuel Mburu Waweru & Stephen Koigi Waweru & 4 Others [2020] KECA 724 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an appellant to skip serving the Notice of Appeal on an untraceable, non-participating respondent, but only because the application came within seven days.
What this practically means
#Executive summary
#Key legal issues
#Dispensation of service of a Notice of Appeal on a non-participating party
Where a respondent did not participate in the proceedings below and could not be traced, and where the application is filed within seven days of lodging the notice of appeal (excluding a public holiday), the court will direct that service need not be effected.
The court applied the proviso to rule 77(1) of the Court of Appeal Rules, which permits an intended appellant to seek dispensation of service on a party who did not participate in the lower court proceedings. The judge relied on the High Court's own record, which noted the 2nd defendant did not appear and could not be traced. The applicant lodged the notice of appeal on 8th August 2019 and brought the application on 13th August 2019; 12th August 2019, having been declared a national holiday, was excluded from computation of time, so the seven-day requirement was satisfied. The application was therefore merited.
Legal principles established
#- An intended appellant who wishes to dispense with service of the Notice of Appeal upon a party who did not participate in the proceedings in the lower court must apply for that direction within seven days of lodging the notice of appeal, under the proviso to rule 77(1) of the Court of Appeal Rules.
Court orders
#- 1.Service of the Notice of Appeal on the 2nd respondent, Dominic Kimani Kamau, is dispensed with
- 2.No orders as to costs
- On appeal from
- High Court
- Nairobi High Court Civil Case No 1141 of 2000
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 77(1) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ecobank Kenya Limited v Samuel Mburu Waweru & Stephen Koigi Waweru & 4 Others [2020] KECA 724 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/724/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.