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Court of AppealDismissedCivil Application No. 19 of 2020

Jared Jilo Opul & 5 others v Municipal Council of Kisumu & 20 others [2021] KECA 936 (KLR)

Court of Appeal of Kenya
5 March 2021
1,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicants moved the Court of Appeal under Rule 84 of the Court of Appeal Rules seeking to strike out a Notice of Appeal lodged by the Municipal Council of Kisumu (sued as 1st respondent) against a judgment of the Environment and Land Court at Kisumu which had dismissed the Council's claim to land described as L.R 12663 measuring approximately 7.72 acres, with costs to the applicants. The applicants argued that although they were served, the 1st respondent failed to serve the Notice of Appeal on the 9th, 10th, 11th, 12th, 13th, 14th, 15th and 18th respondents, who were parties below but never participated, were never served with pleadings, entered no appearance and filed no defence, and that the 1st respondent should have sought leave to exempt itself from such service. The 1st respondent filed no replying affidavit. The Court, comprising Koome, Musinga and Gatembu, JJ.A., asked itself whether those unserved parties would be directly affected by the appeal and were interested parties justifying striking out. It held the applicants bore the burden of demonstrating how those parties would be affected and, given their lack of interest from inception, non-service caused no prejudice. Applying the Supreme Court's decision in Nicholas Kiptoo arap Korir Salat v IEBC, the Court held that procedural lapses not going to the root of the dispute or causing injustice should not attract striking out, and that if the parties are later shown to be necessary, joinder can be ordered at that stage. The motion was dismissed with no order as to costs, the application being unopposed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the said respondents would be directly affected by the outcome of the appeal so as to justify striking out

Key legal issues

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01

Whether non-service of a Notice of Appeal on parties who took no part in the proceedings below warrants striking out under Rule 84

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated 6th February, 2020
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
majority
majority
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

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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

p. 3

Costs

No order as to costs since the motion was not opposed.

Quotable passages

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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.
p. 3Disposition - dismissal of striking-out motion
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.
p. 3Substantive justice over procedural technicality
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.
p. 3Non-service on non-participating parties not prejudicial
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.
p. 3Joinder can be addressed later if necessity is shown

Issues in the judgment

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minor

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

minor

The coram lists the court as sitting at Kisumu but the judgment is stated to have been dated and delivered at Nairobi

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, "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.