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Court of AppealDismissedNotice of Motion dated 3rd June, 2020 (application to strike out Notice of Appeal dated 23rd April 2020 and Record of Appeal dated 8th May 2020)· [2021] KECA 256 (KLR)

Erdemann Property Limited v National Environmental Tribunal; National Environment Management Authority & another (Interested Parties) (Civil Application 199 of 2020) [2021] KECA 256 (KLR)

Court of Appeal of Kenya

3 December 2021

AMA. K. Murgor PKP. O. Kiage

1,675 words in judgment

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The bottom line

Kenya's Court of Appeal refused to kill an appeal over minor name errors and short service delays, prioritising a decision on the merits over technicalities.

What this practically means

Executive summary

This was a ruling of the Court of Appeal at Nairobi, delivered on 3rd December 2021 by Murgor, JA, with Kiage, JA concurring, on a notice of motion dated 3rd June 2020 by London Distillers (K) Limited seeking to strike out the Notice of Appeal dated 23rd April 2020 and the Record of Appeal dated 8th May 2020 filed by Erdemann Property Limited against a Ruling of the Environment and Land Court delivered on 23rd April 2020. The applicant argued that the Notice and Record were served electronically out of time (two days and six days respectively), that no extension of time for service had been sought, and that the appeal was lodged in the misdescribed name 'Erdemann Properties Limited', a stranger to the suit, rendering it incompetent. The respondent countered that filing was within the statutory timelines under rules 75 and 90, that service delays resulted from Covid-19 pandemic disruptions, that the applicant had never served an address for service under rule 79, and that the name difference was a typographical error; in the alternative, it invoked rule 4 for enlargement of time. The court held that the misdescription was not a material one, and that striking out would serve no good purpose where the documents were filed in time, had been received, and any prejudice was compensable in costs. Invoking Article 159 of the Constitution and its inherent jurisdiction, the court declined to strike out the appeal, deemed the Notice and Record of Appeal properly served, dismissed the motion, and awarded the applicant costs of Kshs. 15,000, with liberty to execute in default.

Key legal issues

Whether misdescription of a party's name on a record of appeal renders the appeal incompetent

Holding

No; a typographical misdescription of the respondent as 'Erdemann Properties Limited' rather than 'Erdemann Property Limited' is not a material misdescription and does not render the appeal incompetent.

Reasoning

The words 'property' and 'properties' derive from the same word and bear a close resemblance, so the error could not mislead or prejudice the party concerned. Where no material misdescription occurs, the defect is one that does not go to the competency of the appeal, and the party should not be penalised for a typographical error.

p. 2

Whether delayed service of the Notice of Appeal and Record of Appeal justifies striking out the appeal

Holding

No; where filing was within time, the delay in service was short (two and six days), occurred during the Covid-19 pandemic restrictions, and the applicant acknowledged receipt without prejudice, the appeal should not be struck out and service may be deemed proper.

Reasoning

Both the Notice of Appeal and the Record of Appeal were filed within the timelines in rules 75 and 90. The delays were in service only. Judicial notice was taken of the movement and logistical constraints of the pandemic. Article 159 of the Constitution directs courts to favour substantive justice over procedural technicality, and any prejudice is compensable in costs.

p. 3

Legal principles established

A mere typographical misdescription of a party's name does not of necessity render an appeal incompetent where the names bear a close resemblance and cause no material prejudice.
Short, non-inordinate delays in service of a Notice of Appeal and Record of Appeal, especially amid the Covid-19 pandemic, do not justify striking out an appeal where the documents were filed within time, were received by the respondent, and no prejudice beyond costs arises.

Court orders

1.The notice of motion dated 3rd June, 2020 is dismissed
2.The respondent is ordered to pay the applicant costs of Kshs. 15,000 before the hearing of the appeal
3.In default of payment, the applicant will be at liberty to execute
4.The Notice of Appeal and Record of Appeal are deemed properly served under the court's inherent jurisdiction

Authorities

Legislation

Constitution of Kenya, 2010Article 159
Court of Appeal Rulesrule 4
Court of Appeal Rulesrule 32(3)
Court of Appeal Rulesrule 75
Court of Appeal Rulesrule 77
Court of Appeal Rulesrule 79(1)(a)
Court of Appeal Rulesrule 90(1)

On appeal from: Environment and Land Court
Jurisdiction invoked: Inherent jurisdiction of the Court of Appeal and rule 4 of the Court of Appeal Rules, invoked on an application to strike out an appeal

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Erdemann Property Limited v National Environmental Tribunal; National Environment Management Authority & another (Interested Parties) (Civil Application 199 of 2020) [2021] KECA 256 (KLR)", Case Analysis (2021). Notice of Motion dated 3rd June, 2020 (application to strike out Notice of Appeal dated 23rd April 2020 and Record of Appeal dated 8th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/256/eng@2021-12-03

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