Mohammed Sheikh Abubakar v Zacharius Mweri Baya

contends that there was another notice of appeal lodged with the superior court on 20.9.04 and was served on his advocates on 28.9.2004. We shall revert to that matter presently. Whether the notice of appeal was led on 10.9.2004 or 20.9.2004, it is still contended that there was no record of appeal led pursuant thereto within 60 days as provided for under rule 81 of the rules. By the time the application before us was led on 26.5.2005, which is more than 8 months since the notice of appeal was led, there was no appeal instituted by the respondent; hence the invocation of rule 82 of the rules. 3. Rule 82, provides for the eect of default in instituting appeal and, as far as is relevant, provides:“ 82, If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time (a)he shall be deemed to have withdrawn his notice of appeal and shall, unless the Court otherwise orders, be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served.” 4. There has, of course, been previous conicting decisions of this Court and members of it, on the interpretation of that provision, with one school of thought minded to construe the provision as providing an automatic withdrawal of the notice of appeal once the prescribed period for instituting the appeal expires, while the other found it necessary for a party to obtain a declaration of the Court for such withdrawal. Such were the decisions in Kamau Kibunja vs Noordin Construction (K) Ltd - Civil Application No NAI 172/88 (UR), Bullion Bank Ltd vs FulchandManek & Brothers, Civil Application No NAI 239/97 (UR), Dolphin Palms Ltd vs Al-Nasibh Trading Co Ltd & 2 others - Civil Application No NAI 112/99 (UR), Major Joseph Mwereri Iqweta vs Muroka M’Ethare & Attorney General - Civil Application No NAI 8/2000 (UR). The Rules Committee will hopefully resolve the divergent views expressed in those decisions, but we identify ourselves with the view expressed by the full Court in the Dolphin Palms Ltd Case (supra) when it stated:“ As rightly pointed out by Mr Khatib, for the rst respondent, the Court must be moved to make the order declaring a notice of appeal “deemed to have been withdrawn.” Rule 82, in pertinent part, provides that:We concede there is no express provision requiring a party to move the Court in that regard, however, a careful reading of rule 82 clearly reveals that such an application is necessary. The phrase “unless the Court otherwise orders ....” clearly shows that a court order is necessary and such order can only be validly made by a full bench in an application brought under rule 80 of the Court of Appeal Rules.” 5. We think the applicant in this matter was right to seek an order of the Court under rule 82(a). Nevertheless we are told on the outset by learned counsel for the respondent Mr Asige, that we cannot begin to hear the application because it is within the province of a single judge of this Court. Rule 52 of the rules so provides and in peremptory language. That way an aggrieved party would have an opportunity of making a reference to the full Court under rule 54. Mr Asige may of course, be right, and for our part we think an application made purely under rule 82 (a) ought to be taken before a single judge of this Court. But Mr Asige did not contend, indeed he could not, that the full Court has no jurisdiction to determine such an application. A single judge represents the full Court in applications directed to be heard before him, and in appropriate cases may even refer the applications to the full Court. We nd no impropriety in determining this application and will proceed to do so. 6. The submissions of learned counsel for the applicant Mr Munyithya were two - pronged. He submitted, rstly, that although there was a consent recorded on 9.9.2004 to le and serve the notice https://new.kenyalaw.org/akn/ke/judgment/keca/2006/349/eng@2006-01-27 2

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of appeal, no valid notice was led within the prescribed time, and even if there was one, it was never served. He referred to two notices of appeal on record; one led on 10.9.2004 but not certied by the deputy registrar to have been lodged with the Court; the other led on the same day but certied by the deputy registrar to have been lodged on 20.9.2004. Service of the latter notice was made on the applicant’s advocates on 28.9. 2004 which service was out of time. Mr Asige however contended that there were not two, but one notice of appeal led on 10.9.2004. As is the procedure in Mombasa Law Courts, the notice was transmitted to Nairobi Central Registry for some reason before being returned to the deputy registrar Mombasa for certication on 20.9.2004. In exercise of abundant caution, the notice was served on 17.9.04, without the registrar’s signature and was re-served on 28.9.2004 after his signature. The notice was therefore timeously led and served, he concluded. 7. With respect, we cannot nd the procedure narrated by Mr Asige in our rules. The deputy registrar of the superior court is only required to transmit one copy of the notice of appeal to the appropriate registry upon receiving it. That is rule 75. There is no requirement that the deputy registrar shall forward all copies of the notice to Nairobi, for whatever reason, before they are returned and certied to have been lodged. At all events the signature of the deputy registrar is not essential before service of the notice of appeal. Madan, JA (as he then was) in Cassam & Another vs. Sachania (1982-88) 1 KAR 24, held: “ While rule 76(1) requires an intending appellant to serve his notice of appeal on all persons directly aected by the appeal, there is nothing in that rule, or the preceding rule, rule 75, which requires the notice of appeal to be signed by the registrar before such service.” 8. We agree with that holding. In our judgment, there is, on the face of the record, a notice of appeal led on 10.9. 2004 and served on 17.9.2004. No application has been made however, under rule 80 for striking it out. We decline the invitation made by Mr Munyithya that we should equate “withdrawal” under rule 82 to “striking out” under rule 80 and decide the application as drawn. We nd no merit in the contentions made in that regard and we reject them. That leaves for consideration the second prong in Mr Munyithya’s submissions; whether after the ling and service of the notice of appeal, any appeal was instituted, and if not, whether the order sought under rule 82 (a) should issue. 9. Under rule 81, the respondent ought to have instituted the appeal within 60 days from 10.9.2004, that is, before 9.11.2004. But there is a saving grace for a party who is unable to comply with that timetable in the proviso to the rule, thus: “ Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certied by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.” 10. The saving grace is clearly circumscribed and it can only be invoked by an intending appellant who complies with sub-rule (2):“ An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was sent to the respondent.” 10. The respondent here swears that he applied for copies of the proceedings on 20.9.2004 and did not receive them until 15.11.2005 whereupon he instituted an appeal on 18.11.2005. All that timetable is obviously outside the provisions of rule 81 cited above and we do not understand Mr Asige to say https://new.kenyalaw.org/akn/ke/judgment/keca/2006/349/eng@2006-01-27 3

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that he sought leave of the Court for extension of time. On the contrary, he urges us to ignore the strict construction of the rules and to apply substantial justice in the matter. That way we will nd that the respondent’s erstwhile advocates had orally applied for copies of proceedings the same day the ruling was delivered by the superior court on 23.7.04 and the application was put down in writing. It was deemed to have been served on the other party by virtue of his advocates presence in Court. In substance therefore, the respondent complied with the proviso to rule 81 and sub rule (2) thereto and is covered by those provisions. 11. The short answer to Mr Asige’s plea is that it would make no sense to have express rules of procedure which are not enforced and enforced with consistency. Nor can the Court invoke its inherent powers under Rule 1(3) of the rules where there are express rules that apply to the situation at hand. 12. In this matter, there was a notice of appeal led on 10.09.2004 and, as we have found, served within time. We have not been shown any appeal instituted within 60 days of ling the notice of appeal. Nor have we been shown that there was compliance with the provisions of rule 81 or that an application has been made and granted for extension of time. The respondent, in the replying adavit refers to an appeal led on 18.11.2005 which Mr Asige submits, is not the subject-matter of the application before us. We say nothing about it. 13. In the end, we are satised that the applicant was justied in seeking the order for deeming the notice of appeal to have been withdrawn by the time the application was led in Court on 26.05.2005. We grant the application and give the declaration and consequential order that the notice was withdrawn upon the failure to institute the appeal in accordance with the rules. The applicant shall have costs of the application. DATE AND DELIVER AT MOMBASA THIS 27TH DAY OF JANUARY’S, 2006 R.S.C. OMOLO ………………… JUDGE OF APPEAL E.O O’KUBASU ………………… JUDGE OF APPEAL P.N. WAKI ………………… JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR **** https://new.kenyalaw.org/akn/ke/judgment/keca/2006/349/eng@2006-01-27 4

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