Jared Jilo Opul & 5 others v Municipal Council of Kisumu & 20 others [2021] KECA 936 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal notice served imperfectly, confirming that harmless procedural slips cannot defeat a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure by the 1st respondent to serve the Notice of Appeal on the 9th, 10th, 11th, 12th, 13th, 14th, 15th and 18th respondents, who did not participate in the proceedings below, justified striking out the Notice of Appeal under Rule 84 of the Court of Appeal Rules
- 2.Whether the said respondents would be directly affected by the outcome of the appeal so as to justify striking out
Key legal issues
#Whether non-service of a Notice of Appeal on parties who took no part in the proceedings below warrants striking out under Rule 84
No. Such parties, having shown no interest from inception, are not prejudiced by non-service and their absence does not render the notice liable to be struck out; if later shown to be necessary parties, the court can then make appropriate orders.
The court applied Rule 84, which requires an applicant to show that no appeal lies or that an essential step was not taken. The applicants admitted the unserved respondents never participated, were never served with pleadings, entered no appearance and filed no defence. The applicants failed to discharge the burden of showing how the outcome of the appeal would directly affect those parties. Following Salat, technical lapses causing no injustice should not invalidate proceedings. The matter mainly affects the party that lodged the notice.
Legal principles established
#- Failure to serve a Notice of Appeal on parties who neither participated in the proceedings, were never served with pleadings, nor entered appearance causes no prejudice and cannot justify striking out the notice
- Procedural deviations that cause no injurious prejudice should not have an invalidating effect; courts should not strike out pleadings for mere technical lapses
- An applicant seeking to strike out a Notice of Appeal bears the burden of demonstrating that the unserved parties will be directly affected by the appeal
Court orders
#- 1.Dismissal of the notice of motion dated 6th February, 2020
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- Kisumu ELC Case No. 782 of 2015 (Formerly Kisumu H.C.C. No. 110 of 2007)
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a Notice of Appeal); interlocutory application within an intended appeal
Relief refused
#Striking out of the 1st respondent's Notice of Appeal dated 19th December, 2019
Failure to serve non-participating parties caused no prejudice; procedural lapses not going to the root of the dispute should not attract striking out
Costs
No order as to costs since the motion was not opposed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we have come to the conclusion that the motion dated 6 th February, 2020 cannot succeed and is for dismissal. We make no order as to costs since the motion was not opposed.
where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.
we are satisfied that due to lack of interest in the matter from inception, failure to serve the Notice of Appeal on the said parties cannot cause prejudice to any party in the appeal.
in the event that it will be demonstrated in future that the said parties will be necessary parties, at that stage the court can make appropriate orders as the justice of the case may demand.
Issues in the judgment
#TheNotice of Appeal is described in one place as dated 19th December, 2019 and in another as lodged on 23rd December, 2019, with the application grounding that it was lodged on 23rd December, 2019 - minor internal ambiguity in dates
The coram lists the court as sitting at Kisumu but the judgment is stated to have been dated and delivered at Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Jilo Opul & 5 others v Municipal Council of Kisumu & 20 others [2021] KECA 936 (KLR)", Case Analysis (2021). Civil Application No. 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/936/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.