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Court of AppealAllowedCivil Application 346 of 2021· [2022] KECA 1046 (KLR)

Board of Trustees National Social Security Fund v Kajwang & Kajwang Co Advocates & 2 others

Court of Appeal
23 September 2022
631 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (W Karanja, JA) on an application for extension of time to serve a notice of appeal under Rule 79 of the Court of Appeal Rules. The applicant, through the firm of Wetangula & Co. Advocates, had filed a notice of appeal in time against a judgment of Nzioka, J. of the High Court dated 20 April 2020 in HCCC No. 543 of 2007, but service of that notice on the respondents' counsel was disputed. The applicant asserted that the notice was served by email on 13 May 2020, while the respondents denied receipt; the applicant could not produce the email owing to an alleged computer hitch, an explanation supported by affidavit evidence. The court noted that the email addresses used were not indicated, but observed that there were no replying affidavits to the application. Although the court might have assumed the application itself had not been served, a hearing notice on record showed the respondents' counsel were served on 6 May 2022, yet filed neither submissions nor replying affidavits. The court therefore found the application unopposed, allowed it, and granted leave to serve the notice of appeal afresh within seven days, making no order on costs. The decision below was not disturbed; the ruling is interlocutory and procedural in nature.

Key legal issues

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01

Extension of time to serve a notice of appeal where service by email is disputed and the email cannot be produced

Holding

Extension granted; the notice of appeal was filed on time and only service under Rule 79 was disputed, and the application was unopposed.

Reasoning

The notice of appeal was filed within time; only service was disputed. The applicant explained inability to produce the email due to a computer hitch, supported by affidavit. The respondents, though served with the hearing notice, filed no replying affidavits or submissions, so the application was treated as unopposed and allowed.

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Legal principles established

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  • Where served parties are aware of an application but file no replying affidavits or submissions despite a court direction, the logical conclusion is that the application is unopposed.

Court orders

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  1. 1.Application allowed
  2. 2.Leave granted to counsel for the applicant to serve the Notice of Appeal on the respondents within 7 days from the date of the Ruling
  3. 3.No order on costs

Authorities

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Legislation

  • Court of Appeal RulesRule 79
On appeal from
High Court at Nairobi
HCCC No. 543 of 2007 (Misc. Application No. 276 of 2016 & Misc. Application No. 182 of 2017)
Jurisdiction invoked
Rule 79 of the Court of Appeal Rules (extension of time to serve notice of appeal)

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, "Board of Trustees National Social Security Fund v Kajwang & Kajwang Co Advocates & 2 others", Case Analysis (2022). Civil Application 346 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1046/eng@2022-09-23

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