Lina Cherop Wangamati v Philip Kisang & another [2020] eKLR Case Summary

Court
Court of Appeal at Eldoret
Category
Civil
Judge(s)
Murgor, Sichale & Kantai, JJ.A
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2

Case Brief: Lina Cherop Wangamati v Philip Kisang & another [2020] eKLR


1. Case Information:
- Name of the Case: Lina Cherop Wangamati v. Philip Kisang & Kabon Kisang
- Case Number: Civil Application No. 87 of 2018
- Court: Court of Appeal at Eldoret
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): Murgor, Sichale & Kantai, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court were whether the respondents' notice of appeal should be struck out due to non-compliance with the procedural requirements of timely service as stipulated by the Court of Appeal Rules.

3. Facts of the Case:
The applicant, Lina Cherop Wangamati, filed a Notice of Motion on 14th September 2018, seeking to strike out the respondents' notice of appeal. The respondents, Philip Kisang and Kabon Kisang, had filed their notice of appeal on 25th May 2018 but served it on the applicant only on 17th August 2018, which was 77 days beyond the required seven-day period. The applicant argued that the notice should be deemed withdrawn due to this delay and highlighted that the respondents did not request typed proceedings or serve a record of appeal.

4. Procedural History:
The case progressed through the Court of Appeal following the applicant's motion to strike out the notice of appeal. The respondents did not file any response to the application. The court considered the application based on written submissions in the absence of counsel for the respondents. The applicant's arguments focused on the failure to comply with the mandatory service requirements outlined in the Court's rules.

5. Analysis:
- Rules: The relevant rule considered was Rule 77(1) of the Court of Appeal Rules, which mandates that an intended appellant must serve a notice of appeal on all affected parties within seven days of lodging the notice.
- Case Law: The court referenced previous cases such as *Stephen Kinoro Kamau v. Wanjiku Kinuthia & another* and *Daniel Nkirimpa Monirei v. Sayialel ole Koilel & 4 others*, which established the importance of timely service to ensure that all parties are informed of ongoing proceedings. The rationale was that late service could mislead parties into believing that the matter had been concluded.
- Application: The court found that the respondents did not comply with the mandatory requirement of timely service, as the notice was served 77 days late without an application for extension. This non-compliance was deemed significant, leading to the conclusion that the notice of appeal should be struck out.

6. Conclusion:
The Court of Appeal ruled in favor of the applicant, striking out the respondents' notice of appeal filed on 25th May 2018 due to failure to comply with the service requirements. The respondents were ordered to bear the costs of the application. This ruling underscores the importance of adhering to procedural rules in the appellate process.

7. Dissent:
There were no dissenting opinions noted in this case as the decision was unanimous among the judges.

8. Summary:
The Court of Appeal in Kenya ruled to strike out the notice of appeal filed by the respondents due to non-compliance with the mandatory service requirements. This case highlights the critical nature of procedural adherence in civil appeals, reinforcing the principle that timely communication between parties is essential for fair legal proceedings. The decision serves as a precedent for future cases regarding the strict application of procedural rules in appellate courts.

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