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Court of AppealAllowedCivil Appeal (Application) No. 20 of 2020· [2021] KECA 659 (KLR)

Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 8 others

Court of Appeal
23 April 2021
FSF. Sichale
1,443 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you don't have to serve a notice of appeal on parties who never took part in the original case.

What this practically means

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Executive summary

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This is a single-judge (chambers) ruling of the Court of Appeal at Kisumu on an interlocutory procedural application by the Municipal Council of Kisumu, the intended appellant against the judgment of the Environment and Land Court at Kisumu (S. K. Kibunja, J) of 13th December 2019 in ELC Cause No. 782 of 2015, which was dismissed with costs. The applicant filed a Notice of Appeal on 20th December 2019 and moved the Court ex parte under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 77(1) of the Court of Appeal Rules, 2010, seeking an order that the notice of appeal need not be served on eight named persons who took no part in the superior court proceedings. The applicant relied on Rule 77(1) and on Stephen Boro Githia v Family Finance Building Society & 3 others, invoking the overriding objective. The Court recited Rule 77(1), which requires service on all persons directly affected by the appeal but permits ex parte dispensation for non-participants, and applied the test in Daniel Odindo Waga v Nabil Hassan that 'directly affected' is a question of fact turning on whether the appeal's success would adversely affect the party. It also drew on Daniel Nkirimpa Monirei on the purpose of service. Concluding that non-participants will not be affected by the appeal and need not be alerted, the Court allowed the motion. This ruling is interlocutory and determines only service of the notice of appeal; it does not disturb the decision below, and no costs order was made in respect of the application.

Key legal issues

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01

Dispensation of service of Notice of Appeal under the proviso to Rule 77(1) of the Court of Appeal Rules, 2010

Holding

The court may, on ex parte application within seven days of lodging the notice of appeal, direct that service need not be effected on persons who took no part in the superior court proceedings; non-participants are not 'directly affected by the appeal'.

Reasoning

Rule 77(1) requires service of the notice of appeal on all persons directly affected, but its proviso permits ex parte dispensation for non-participants. The purpose of service is to alert parties that the case is not concluded so they can prepare; non-participants neither stand to be adversely affected by a successful appeal nor need that alert. Applying the overriding objective, dispensing with service on disinterested parties occasions no prejudice and enables the appeal to progress.

p. 3

Legal principles established

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  • Whether a person is 'directly affected by the appeal' is a question of fact; the test is whether the party would be adversely affected if the appeal succeeded.
  • Parties who did not take part in the superior court proceedings will not be 'affected' by the appeal and need not be served with the Notice of Appeal where the court so directs under the proviso to Rule 77(1).

Court orders

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  1. 1.The Notice of Appeal filed on 20th December 2019 need not be served on the named respondents (Felistus N. Barasa, Edwin A. Omuyaka, Wilson Opondo, Elizabeth Nyabera, Paul Oduol Onalo, Ruth Akinyi Ouko, Elijah Ogoti Osiemo and Ephraim Engatia), being persons who did not take part in the proceedings of the superior court
On appeal from
Environment and Land Court at Kisumu
ELC Cause No. 782 of 2015
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act (CAP 9) and Rule 77(1) of the Court of Appeal Rules, 2010

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, "Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 8 others", Case Analysis (2021). Civil Appeal (Application) No. 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/659/eng@2021-04-23

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