Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (Motion) dated May 23, 2022 in ELC Appeal re Malindi ELC No. 216 of 2012

Baluchi v Giriama Central Properties Association & 2 others (Civil Application E034 of 2022) [2023] KECA 646 (KLR)

Court of Appeal
9 June 2023
PNP. NyamweyaJLJ. LesiitGOG. V. Odunga
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed you cannot demand service on a party you removed from a case, and motions must state their grounds on their face.

What this practically means

#

Executive summary

#
The applicant, Ayub Shero Baluchi, moved the Court of Appeal at Mombasa by notice of motion dated May 23, 2022 under rules 77, 84 and 104(b) of the 2010 Court of Appeal Rules (now rules 79, 86 and 107(b) of the 2022 Rules), seeking to strike out a notice of appeal filed by the 1st respondent against the dismissal of its suit in Malindi ELC No. 216 of 2012. The complaint was that the notice of appeal was not served on the 2nd respondent, allegedly a person directly affected by the appeal, even though the 2nd respondent had been struck out of the suit at trial on the applicant's own application for want of a cause of action. The 1st respondent opposed, pointing out that the 2nd respondent ceased to be a party in 2014 and was not affected by the judgment, and that the application itself failed to comply with rule 42(1) and rule 44 of the 2010 Rules. Applying the settled test that whether a party is directly affected by an appeal is a question of fact, determined by whether success of the appeal would adversely affect that party, the court held that the applicant failed to demonstrate that the 2nd respondent was directly affected. The applicant, who had himself procured the 2nd respondent's removal from the suit through the same advocate now acting for him, was found to be approbating and reprobating. The court also found a mandatory procedural defect: no grounds were set out on the face of the application as required by rule 44. The motion was dismissed with costs to the 1st respondent.

Key legal issues

#
01

Meaning of "directly affected by the appeal" for purposes of mandatory service of a notice of appeal

Holding

The phrase has no technical meaning; it is a question of fact, tested by whether success of the appeal would adversely affect the party. The applicant failed to show the 2nd respondent, struck out of the suit at his own instance, was directly affected.

Reasoning

The court adopted its earlier construction that the phrase is factual, not technical. Here the applicant himself had successfully applied at trial to strike out the 2nd respondent on the ground that no cause of action was disclosed against him, and both were represented by the same advocate. The applicant could not now assert the 2nd respondent was directly affected without explaining the shift; the court held he was approbating and reprobating, and no grounds supported the change of position.

p. 3
02

Procedural defect: failure to set out grounds on the face of the application

Holding

The application did not state grounds on its face as required by rule 44 of the Rules, which is couched in mandatory terms; only the supporting affidavit disclosed grounds.

Reasoning

Rule 44 requires grounds to be given on the face of the application, and the court characterized this requirement as mandatory. The absence of grounds on the face of the motion was a procedural defect. The only grounds that could be gleaned were in the supporting affidavit, and those did not demonstrate that the 2nd respondent would be directly affected by the appeal.

p. 3

Legal principles established

#
  • Whether a party is directly affected by an appeal is a question of fact determined by asking whether, if the appeal were to succeed, the result would adversely affect that party.
  • The essential object of service of proceedings is to bring them to the attention of the person concerned so that he has an opportunity of putting his case before the court.

Court orders

#
  1. 1.Dismissal of the notice of motion dated May 23, 2022
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
Environment and Land Court
Malindi ELC No. 216 of 2012
Jurisdiction invoked
Rules 79, 86 and 107(b) of the Court of Appeal Rules (formerly Rules 77, 84 and 104(b) of the Court of Appeal Rules, 2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Baluchi v Giriama Central Properties Association & 2 others (Civil Application E034 of 2022) [2023] KECA 646 (KLR)", Case Analysis (2023). Civil Application (Motion) dated May 23, 2022 in ELC Appeal re Malindi ELC No. 216 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/646/eng@2023-06-09

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