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Court of AppealDismissedCivil Appeal (Application) E351 of 2022· [2024] KECA 1943 (KLR)

Wambugu (t/a Wambugu & Company Advocates) v Ikiugu

Court of Appeal
20 December 2024
WKW. KaranjaWKW. KorirGOG. V. Odunga
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that emailing a notice of appeal to a law firm's own email address counts as valid service, keeping the appeal alive.

What this practically means

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Executive summary

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The applicant, an advocate who had successfully defended an ELRC claim, moved the Court of Appeal under rules 42, 83 and 84 of the Court of Appeal Rules to strike out the respondent's notice of appeal and record of appeal from the judgment of M. Mbaru, J dated 4th April 2022, which had dismissed the respondent's case. She argued the notice of appeal was never served on her or her counsel, that the record of appeal was not preceded by a valid notice of appeal, and that the appeal was an abuse of process. The respondent opposed, contending among other things that the application cited revoked 2010 Rules, was out of time under rule 86 of the 2022 Rules, and that the notice of appeal had been served by email a day after filing. The court framed a single issue: whether the notice of appeal and letter bespeaking proceedings were served within the prescribed timelines. Relying on counsel's concession that the email address used belonged to the applicant's firm, the court found service proper and held no affidavit of service was needed where the email address was unchallenged. On timeliness of the record of appeal, the court held that having applied for proceedings within 30 days, the appellant could invoke the proviso to rule 84; with proceedings and a certificate of delay supplied on 17th June 2022, the appellant had 60 days, and service of the record on 15th July 2022 was within time. The application was dismissed with costs to the respondent.

Key legal issues

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01

Validity of service of notice of appeal by email

Holding

Service by email to the firm's own email address, unchallenged, constitutes proper service; no affidavit of service was required.

Reasoning

Counsel for the applicant conceded the email address to which the notice of appeal and letter bespeaking proceedings were sent belonged to their firm. Having conceded this, the court found the documents were properly served. Since the email address was not contested, it was unnecessary for the respondent to file an affidavit of service.

p. 2
02

Computation of time for instituting the appeal under rule 84

Holding

Because the appellant applied for proceedings within 30 days and served the application, the proviso to rule 84 excluded the certified preparation period; the record of appeal filed within 60 days of the certificate of delay was in time.

Reasoning

The court found the notice of appeal and letter bespeaking proceedings were served by email a day after filing, entitling the appellant to the proviso to rule 84. Proceedings were supplied with a certificate of delay on 17th June 2022, giving 60 days to file and serve the record of appeal. Service on 15th July 2022 fell within that period.

p. 3

Legal principles established

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  • Where service of a notice of appeal by email to an uncontested email address of the receiving party's firm is proved, an affidavit of service is unnecessary and service is properly effected.
  • An appellant who applies for a copy of proceedings within thirty days of the decision and serves the application is entitled to the exclusion of certified preparation time under the proviso to rule 84 when computing the 60-day period for instituting the appeal.

Court orders

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  1. 1.The notice of motion dated 12th July 2022 seeking to strike out the notice of appeal and record of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 86
  • Court of Appeal Rules, 2010
  • Court of Appeal Rules, 2022
On appeal from
Employment and Labour Relations Court
ELRC Cause No. 887 of 2016
Jurisdiction invoked
Rules 42, 83 and 84 of the Court of Appeal Rules (application to strike out notice and record 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, "Wambugu (t/a Wambugu & Company Advocates) v Ikiugu", Case Analysis (2024). Civil Appeal (Application) E351 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1943/eng@2024-12-20

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