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Court of AppealAllowedCivil Application No. 18 of 2017· [2021] KECA 463 (KLR)
Nancy Wairimu Kibui v Peter Wachira Njoroge & 3 others [2021] KECA 463 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal because the appellant never served it on the respondents as Rule 77(1) requires.
What this practically means
#Executive summary
#This was an application before the Court of Appeal at Nyeri to strike out a Notice of Appeal dated 29th March, 2016, filed by Nancy Wairimu Kibui following the judgment of A. Ombwayo, J. of the High Court at Nyeri in ELC No. 141 of 2008 delivered on 23rd March, 2016. The applicant, who had lost the suit below, filed her Notice of Appeal on 1st April, 2016 but failed to serve it on the respondents as required by Rule 77(1) of the Court of Appeal Rules. The respondents' counsel, Mr. Kelvin Mogeni, only learned of the appeal when he was served with a case management conference notice in January 2017, prompting the Notice of Motion dated 23rd February, 2021 seeking striking out of the Notice of Appeal. The application was not opposed; the appellant filed no response and did not respond to the hearing notice. The Court (Karanja, Asike-Makhandia and Murgor, JJ.A.) found there was no contestation that service was not effected, held the application merited, and allowed it with costs to the respondents. This ruling is binding on the High Court and subordinate tribunals as a statement that non-service of a Notice of Appeal under Rule 77(1) exposes it to being struck out.
Key legal issues
#01
Whether the Notice of Appeal should be struck out for non-service under Rule 77(1)
Holding
The application to strike out the Notice of Appeal was unopposed and the failure of service was admitted; the application was allowed with costs.
Reasoning
The applicant's counsel deponed that the respondents only discovered an appeal had been filed when a case management conference notice was received in January 2017; the notice of appeal filed on 1st April 2016 was never served. The application was not opposed and the court found it merited, allowing it with costs.
p. 1
Legal principles established
#- A Notice of Appeal must be served on the respondents as required under Rule 77(1) of the Court of Appeal Rules, and failure to do so exposes the Notice of Appeal to being struck out.
Court orders
#- 1.The Notice of Appeal dated 29th March, 2016 is struck out/dismissed for failure to serve it on the respondents
- 2.Costs of the application to the applicant/respondents in the appeal
- On appeal from
- High Court of Kenya at Nyeri
- ELC No. 141 of 2008
- Jurisdiction invoked
- Court of Appeal Rules, Rule 77(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Wairimu Kibui v Peter Wachira Njoroge & 3 others [2021] KECA 463 (KLR)", Case Analysis (2021). Civil Application No. 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/463/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.