Green Power Generation Company Limited v Kenya Power & Lighting Company Ltd & another (Civil Application E048 of 2020) [2024] KECA 718 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Meaning of 'persons directly affected by the appeal' under rule 79(1) of the Court of Appeal Rules, 2022
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.
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.
Whether Mpeketoni Electricity Project was directly affected by the appeal
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.
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.
Burden of proof regarding non-service and direct affection
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.
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.
Legal principles established
#- 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
#- 1.The Motion dated 19th June 2020 was dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.