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

3. The application is opposed through the replying adavit sworn by Samuel Muthomi Ikiugu, the respondent, dated 30th January 2023 in which he depones that; the application is completely misconceived for being made under the provisions of the Court of Appeal Rules, 2010 which were revoked by the Court of Appeal Rules, 2022 and which later Rules had already come in force on 8th July 2022 before the present application; that notwithstanding citation of the wrong rules, an application to strike out an appeal cannot be made later than 30 days after service of the record of appeal pursuant to rule 86 of the Court of Appeal Rules, 2022; that the applicant was served with the record of appeal on 13th June 2022; that accordingly, the applicant had until end of day on 13th July 2022 to le an application to strike out the appeal; that the application dated 15th July 2022 was led out of time and without leave; and that it is not true that the notice of appeal was never led or served as alleged by the applicant; that the subject notice of appeal was led on 5th April 2022 only a day after the High Court judgment and was served by email a day after on 6th April 2022; that from the certicate of delay the typed proceedings were availed on 4th June 2022 and as such that he had until 4th August 2022 to le the record of appeal and, therefore, that the record of appeal led on 13th June 2022 was well within time; that the applicant’s argument that the appeal should have been led by 28th April 2022 is absolutely misleading; and that the notice of appeal is included in the record of appeal and nally that the application dated 12th July 2022 lacks merit and should be dismissed. 4. Parties did not le submissions but the court allowed them to make brief oral submissions at the plenary hearing of the motion on 11th December 2024. Mr. Museve, learned counsel who held brief for Ms. Guserwa for the applicant told the court that the notice of appeal was not served on them within the 7 days as prescribed by the Court of Appeal Rules. He nonetheless acknowledged that the email address to which the annexed notice of appeal and the letter bespeaking proceedings were sent, was their email. He, nonetheless, told the court that they did not receive the email and he could not explain why. 5. On his part, Mr. Guandaru, learned counsel appearing for the respondent maintained that they led the notice of appeal only a day after the impugned judgment was rendered and they served the notice along with the letter bespeaking the proceedings to the applicant’s rm in accordance with the Practice Directions issued by the President of this court. 6. We have considered the notice of motion, the rival adavits, the brief oral submissions by both counsel and the law. Several issues have been raised by the applicant, but in our view, the only issue for determination here is whether the notice of appeal and the letter bespeaking proceedings were served on counsel for the respondent within the prescribed timelines. There is on record an email sent on 6th April 2022 to info@guserwaadvocates.co.ke to which the notice of appeal and letter requesting for proceedings were sent. 7. With the concession by counsel for the applicant that the email address in question belongs to their rm, our nding is that the documents were properly served on them. It was not necessary for the respondent to le an adavit of service as the email address was not contested. 8. The next question then becomes whether the record of appeal was served within the timelines prescribed by the Court of Appeal Rules. Rule 84 of the Court of Appeal Rules provides that: " 1. Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged— a. a memorandum of appeal, in four copies; b. the record of appeal, in four copies; https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1943/eng@2024-12-20 2

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c. the prescribed fee; and d. security for the costs of the appeal: 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 after 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. (Emphasis added). 2. An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent. 3. The period specied in sub-rule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction.” 9. In this case, having found that the appellant served both the notice of appeal and the letter bespeaking proceedings on the respondent’s counsel by email only a day after the same were led, the appellant is entitled to seek refuge in the proviso to rule 84 of the Court of Appeal Rules. 10. The appellant availed evidence to the aect that the proceedings were supplied to counsel for the appellant alongside a certicate of delay on 17th June 2022. This, therefore, meant that the appellant had 60 days from 17th June to le and serve the record of appeal on the respondent. The record of appeal having been served on the respondent’s counsel on 15th July 2022, evidently, the same was served within the prescribed time and the issue of striking it out does not arise. 11. Our conclusion, therefore, is that both the notice of appeal and the record of appeal were served within time. We nd this application devoid of merit and dismiss it accordingly with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. W. KARANJA ……………………………… JUDGE OF APPEAL W. KORIR ……………………………… JUDGE OF APPEAL G. V. ODUNGA ……………………………… 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/2024/1943/eng@2024-12-20 3

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