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Court of AppealDismissedMalindi Civil Appeal No. E041 of 2024 (Application)· [2024] KECA 718 (KLR)

Green Power Generation Company Limited v Kenya Power & Lighting Company Ltd & another (Civil Application E048 of 2020) [2024] KECA 718 (KLR)

Court of Appeal of Kenya
21 June 2024
2,545 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out a Notice of Appeal, ruling only people directly affected—not remotely affected—must be served with appeal papers.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Murgor, Laibuta and Odunga, JJ.A.) delivered on 21st June 2024 on a Notice of Motion dated 19th June 2020 by Green Power Generation Company Limited, the successful plaintiff before Olola, J. in Malindi ELC No. 179 of 2013, where it recovered general damages of Kshs. 10,000,000 against the 1st respondent as a trespasser. The applicant sought to strike out the 1st respondent's Notice of Appeal on the ground that it had not been served on Mpeketoni Electricity Project, the entity from which the applicant bought the suit property, contending that rule 79(1) of the Court of Appeal Rules, 2022 mandatorily requires service on all persons directly affected by an appeal. The Court construed rule 79(1), holding that the word 'persons' extends service beyond parties to the proceedings below, but only to persons DIRECTLY affected, not remotely affected. It further held, applying section 112 of the Evidence Act and its own decision in Aggrey Peter Thande v Abn Amro Bank Ltd, that the burden of proving both non-service and direct affection lies on the party making the allegation, and is heavier where that party itself commenced the proceedings below and elected not to join the person concerned. Since Mpeketoni Electricity Project was not a party below, no orders had been made for or against it, and it had not sought to join the appeal, the Court was not satisfied it was directly affected. The Motion was dismissed with costs. The decision of Olola, J. was not disturbed; the substantive appeal remains pending.

Key legal issues

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01

Meaning of 'persons directly affected by the appeal' under rule 79(1) of the Court of Appeal Rules, 2022

Holding

The word 'persons' rather than 'parties' shows service is not confined to parties to the proceedings below, but extends to all persons directly affected; however only direct, not remote, affection triggers the obligation to serve.

Reasoning

The court read rule 79(1) (formerly rule 77(1) of the 2010 Rules) and held that service obligations extend beyond formal parties to anyone directly affected by the appeal. The rule, including its proviso permitting dispensation of service on non-participants, is mandatory: either all directly affected persons are served or an order dispensing with service is obtained. But the affection must be direct; remote affection does not suffice.

p. 4
02

Whether Mpeketoni Electricity Project was directly affected by the appeal

Holding

It was not. It was not a party below, no orders were made for or against it, it had not sought to join the appeal, and it was the applicant itself that had omitted to join it in its own suit, making its present complaint unmeritorious.

Reasoning

The applicant instituted the proceedings below and chose not to join Mpeketoni Electricity Project, presumably because it did not discern any interest. It now alleged that entity's interests would be adversely affected, but Mpeketoni Electricity Project had not come to court to protect any alleged interests. No orders below touched it, and the Court could not, on the material before it, find it directly affected, though it might be affected in some way.

03

Burden of proof regarding non-service and direct affection

Holding

The burden rests on the party alleging that a person ought to have been served but was not, to prove both non-service and that the person is directly affected, invoking section 112 of the Evidence Act.

Reasoning

Applying section 112 of the Evidence Act, the Court placed the burden of proving the particular fact of direct affection on the party wishing the court to believe it. Where the alleging party was also the one who commenced the proceedings and declined to join the person in question, the burden is heavier. The Court relied on Aggrey Peter Thande v Abn Amro Bank Ltd for the prima facie position that non-participants whose interests were unknown are not directly affected parties.

p. 4

Legal principles established

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  • Service of the Notice of Appeal under rule 79(1) is required on all persons directly affected by the appeal, not merely parties to the proceedings, but only persons DIRECTLY affected, not those remotely affected, must be served.
  • The burden of proving that an unserved person is directly affected by the appeal lies on the person making that allegation, and is heavier where that person commenced the proceedings below and elected not to join the unserved person.
  • Where a person did not take part in the proceedings below and the respondent could not have known of their interest in the litigation, prima facie that person is not directly affected by the appeal.

Court orders

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  1. 1.The Motion dated 19th June 2020 was dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules, 2022rule 79(1)
  • Court of Appeal Rules, 2010rule 77(1)
  • Government Proceedings Act (Cap. 40)section 13A(1)
  • Public Authorities Limitation Act (Cap. 39)section 3(1)
  • Civil Procedure Actsections 1A, 1B
  • Appellate Jurisdiction Actsections 3A, 3B
  • Constitution of Kenya, 2010Article 159
  • Evidence Actsection 112
  • Civil Procedure RulesOrder 1 rule 3

Cases cited (10)

  • Ruithibo v Nyingi
    (1984) KLR 505
  • Ahn v Openda
    (1982) KLR 87
  • Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 Others
    (2012) eKLR
  • Daniel Odindo Waga v Nabil Hassan
    [2009] eKLR
  • Trade Bank Limited v LZ Engineering Construction Ltd & Others
    [1995-8] 1 EA 317
  • Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 Others
    [2016] eKLR
  • Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 19 Others
    [2021] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Joseph Kiangoi v Wachira Waruru & 2 Others
    [2010] eKLR
  • Aggrey Peter Thande v Abn Amro Bank Ltd & 2 Others
    Civil Appeal (Application) No. 250 of 2005 (UR)
On appeal from
Environment and Land Court at Malindi
Malindi ELC No. 179 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act and Court of Appeal Rules over an interlocutory application in a pending 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, "Green Power Generation Company Limited v Kenya Power & Lighting Company Ltd & another (Civil Application E048 of 2020) [2024] KECA 718 (KLR)", Case Analysis (2024). Malindi Civil Appeal No. E041 of 2024 (Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/718/eng@2024-06-21

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