Omaido v Omunga & 3 others (Civil Application E181 of 2021) [2022] KECA 839 (KLR) (22 July 2022) (Ruling) Neutral citation: [2022] KECA 839 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CIVIL APPLICATION E181 OF 2021 PO KIAGE, K M'INOTI & M NGUGI, JJA JULY 22, 2022 BETWEEN JACKSON EKIM OMAIDO .................................................................... APPLICANT AND LUCIA NGAIRA OMUNGA ........................................................ 1ST RESPONDENT NELSON MAKOKHA .................................................................. 2ND RESPONDENT JOHN OKWAROI ......................................................................... 3RD RESPONDENT STANLEY EKOINE JUMA ........................................................... 4TH RESPONDENT RULING 1. The Motion on Notice before us is taken out principally under Rules 82, 83 and 84 of the Court of Appeal Rules and craves an order to strike out the respondents’ record of appeal arising from the ruling and order of the Environment & Land Court at Kisumu dated 3rd May 2021. The applicant contends that the record of appeal was led and served out of time without leave of the Court and is therefore incompetent. The application to strike out the record of appeal is dated 17th December 2021. 2. The record shows that after the ruling in question was delivered on 3rd May 2020, the respondents led a notice of appeal the next day, on 4th May 2021, which was well within the 14 days prescribed by rule 75(2) of the Court of Appeal Rules. However, the applicant contends that the respondents served the notice of appeal upon his advocates on 13th May 2021, which is outside the seven days required by rule 77(1). The applicant further contends that the respondents led their record of appeal on 5th October 2021 and served his advocates with the same on 9th December 2021. It is the applicant’s contention that the record of appeal was led outside the sixty days prescribed by rule 82(1) and that the respondents cannot benet from the proviso to the said rule because they never served upon the applicant a letter bespeaking the proceedings. It is also the applicant’s contention that even if the certicate of delay were taken into account, the record of appeal was still led out of time because the proceedings were availed https://new.kenyalaw.org/akn/ke/judgment/keca/2022/839/eng@2022-07-22 1
page 1 of 3
to the respondents on 28th June 2021, after which they had sixty days to le the record of appeal. The applicant relied on the rulings of this Court in Patrick Kiruja Kithinji v. Victor Mugira Marete [2015] eKLR and Daniel Nkirimpa Monirei v. Sayialel Ole Koilel & 4 others [2016] eKLR and submitted that failure to le an appeal on time was not a mere procedural irregularity curable under article 159(2) (c) of the Constitution. 3. The respondents opposed the application vide a replying adavit sworn by Lucia Ngaira Omunga on 22nd December 2021, together with their written submissions. They contend that upon ling the notice of appeal, they applied for copies of the proceedings and ruling and served the notice of appeal and the application for proceedings upon the applicant’s counsel on 13th May 2021. It is argued that rule 82(2) requires an appellant to serve and not to copy the letter bespeaking the proceedings to the opposite party. Copies of the proceedings were supplied on 28th June 2021 and a certied copy of the ruling on 28th July 2021. 4. As regards the ling of the record of appeal, the respondents state that they led the same online on 1st September 2021 but upon enquiry at the Registry, they were advised to re-le the record using a dierent email address, which they did on 23rd September 2021 but were issued with a receipt dated 5th October 2021. The record of appeal was stamped as led on 5th October 2021 and service upon the applicant was eected on 9th December 2021. It is conceded that based on the certicate of delay, the record of appeal was led out of time. The delay in service of the record of appeal is attributed to mistake of an unnamed clerk in the advocates’ rm, which we are urged not to visit on the respondents. 5. The respondents relied on a number of decisions, among them Charles Karanja Kiiru v. Charles Githinji Muigwa [2017] eKLR, which we note are relevant in an application for extension of time under Rule 4 of the Court’s Rules rather than to an application for striking out an appeal led out of time, as is the case in the present application. In Kamlesh Mansukhalal Damji Pattni v. Director of Public Prosecutions & 3 others [2015] eKLR also relied upon by the respondents, this Court found that the record of appeal was led and served on time, but even if it was not served on time, the applicant, who had obstructed service, could not be heard to complain. Clearly, it does not aid the respondents in this application 6. Turning to the merits of this application, it is common ground that the notice of appeal was led on time. It is also common ground that the notice of appeal was served upon the applicant on 13th May 2021, which was outside the time prescribed by the rules. There is no evidence on record of service of the letter bespeaking the proceedings upon the applicant. The respondents contend that the same was served upon the applicant on 13th May 2021, the day the notice of appeal was served. Whilst the applicant readily admits service of the notice of appeal on 13th May 2021, he atly denies that he was served with the letter bespeaking the proceedings. 7. The onus is upon the respondents to satisfy us that they indeed served the letter bespeaking proceedings upon the applicant on 13th May 2021. Whilst it is true that rule 82(2) requires the letter bespeaking proceedings be served rather than be copied to the opposite party, the record persuades us that the respondents did neither. 8. The eect of that conclusion is that the respondents are not entitled to rely on the proviso to rule 82(2), which means that they should have led the record of appeal within 60 days of the ling of the notice of appeal. Indeed, even if the certicate of delay dated 28th June 2021 were to be taken into account, the respondents readily admit that the appeal was led out of time (on 5th October 2021) and served out of time (on 9th December 2021) for which they blame an unnamed clerk. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/839/eng@2022-07-22 2
page 2 of 3
9. In the event, we nd merit in the applicant’s motion on notice dated 17th December 2021 and allow the same. The respondents’ record of appeal led on 5th October 2021 is hereby struck out with costs to the applicant. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JULY, 2022 P. KIAGE --------------------------JUDGE OF APPEAL K. M’INOTI --------------------------JUDGE OF APPEAL MUMBI NGUGI --------------------------JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/839/eng@2022-07-22 3
page 3 of 3