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Court of AppealDismissedCivil Application E045 of 2022· [2022] KECA 1079 (KLR)

Mariita v County Government of Nyamira & 4 others; Nyangau & another (Interested Parties)

Court of Appeal
7 October 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
1,323 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that emailing a request for court proceedings counts as valid service, and appeal deadlines pause until those proceedings are ready.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) dismissing a notice of motion dated March 28, 2022 by which Vincent Omao Mariita, the successful party before the ELRC at Kisumu (Baari, J., judgment of December 16, 2021), sought to strike out the County Government of Nyamira respondents' notice of appeal lodged on January 10, 2022, or alternatively to have it deemed withdrawn, and to vacate stay orders granted by the ELRC on March 10, 2022. The applicant argued that the notice of appeal and the letter bespeaking proceedings were never served on him or his advocates, and that the respondents filed the notice merely to obtain stay. The 4th respondent replied that both the notice and a letter of December 20, 2021 bespeaking certified proceedings were served on the applicant's advocates by email, and that the ELRC had not yet prepared the typed proceedings. The court framed the determinative question as whether the respondents complied with the proviso to rule 82(1) and sub-rule (2) of the Court of Appeal Rules, 2010. Finding an uncontroverted email of December 20, 2021 to the applicant's advocates' address, and that the proceedings remained unprepared, the court held that the time for instituting the appeal had not begun to run, rendering the application premature. The motion was dismissed with costs to the respondents. The High Court judgment itself was not reviewed; it remains subject to the intended appeal.

Key legal issues

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01

Compliance with the proviso to rule 82(1) and sub-rule (2) of the Court of Appeal Rules, 2010

Holding

The respondents' written request for proceedings of December 20, 2021, within 30 days of the decision, served on the applicant's counsel, brought them within the proviso's grace; time for instituting the appeal is excluded until proceedings are ready.

Reasoning

Rule 82(1) requires institution of an appeal within 60 days of the notice of appeal. The proviso excludes time certified by the registrar as required for preparation and delivery of proceedings where the request was made within 30 days. Sub-rule (2) requires the request to be in writing and served. The court found an email of December 20, 2021 to the applicant's advocates' address, uncontroverted, and that the ELRC had not furnished the typed proceedings.

p. 3
02

Validity of service by email

Holding

Service by email to the last confirmed and used email address, with a delivery receipt, is an acceptable mode of service under order 5 rule 22b of the Civil Procedure Rules, 2010.

Reasoning

Rule 17 of the Court of Appeal Rules, 2010 permits service in any manner the court directs, or by any recognized mode under order 5 of the Civil Procedure Rules. Order 5 rule 22b recognises email service to the last confirmed address, deemed effected on receipt of a delivery receipt. The applicant's advocates did not deny the email address used.

p. 3

Legal principles established

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  • Where an appellant timeously applies for proceedings in writing and serves the request on the respondent, the time certified by the registrar for preparation and delivery of the proceedings is excluded in computing the 60-day period for instituting the appeal; until proceedings are ready, time has not begun to run.
  • Service of a copy of the request for proceedings by email to the last confirmed email address, evidenced by a delivery receipt, is a valid mode of service satisfying sub-rule (2) of rule 82.

Court orders

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  1. 1.The notice of motion dated March 28, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 42(1)
  • Court of Appeal Rules, 2010rule 75
  • Court of Appeal Rules, 2010rule 82(1)
  • Court of Appeal Rules, 2010rule 83
  • Court of Appeal Rules, 2010rule 84
  • Court of Appeal Rules, 2010rule 17
  • Court of Appeal Rules, 2010rule 115
  • Court of Appeal Rules, 2010rule 22
  • Civil Procedure Rules, 2010order 5 rule 22b
On appeal from
High Court of Kenya at Kisumu (Baari, J.)
1 ELRC No. E047 of 2021
Jurisdiction invoked
Rules 42(1), 75, 82(1), 83 and 84 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, "Mariita v County Government of Nyamira & 4 others; Nyangau & another (Interested Parties)", Case Analysis (2022). Civil Application E045 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1079/eng@2022-10-07

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