Civil Application 111 of 2020

Case Metadata
Case Number:	Civil Application 111 of 2020
Parties:	Muse v Wepukhulu & 10 others
Date Delivered:	28 Apr 2022
Case Class:	Civil
Court:	Court of Appeal at Kisumu
Case Action:
Judge(s):	PO Kiage, M Ngugi, F Tuiyott
Citation:	Muse v Wepukhulu & 10 others (Civil Application 111 of 2020) [2022] KECA 503 (KLR) (28 April 2022) (Ruling)
Court Division:	Civil
County:	Kisumu
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Muse v Wepukhulu & 10 others (Civil Application 111 of 2020) [2022] KECA 503 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KECA 503 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application 111 of 2020

PO Kiage, M Ngugi & F Tuiyott, JJA

April 28, 2022

Between

Maurice Anthony Wanjala Muse

Applicant

and

John Simiyu Wepukhulu

1^st Respondent

Issac Wafula Wanakach

2^nd Respondent

Omoto David alias Omoto Philip

3^rd Respondent

Solomon Wanyonyi Khaemba

4^th Respondent

Abraham Change Wekesa

5^th Respondent

Penana Mtonyi

6^th Respondent

Mary Ambogo

7^th Respondent

Nelly Sikhoya Balanga

8^th Respondent

Anne Nekesa Wekesa

9^th Respondent

Jotham Simita

10^th Respondent

Wycliffe Airo Sirikwa

11^th Respondent

(Being an application to strike out the notice of appeal in the Environment & Land Court at Kitale dated 11th August, 2020 in Case No. 17 of 2011)

Ruling

1.By the motion on notice dated 16^th September 2020, brought under Rule 84 of the Rules of Court, the applicant prays that the notice of appeal dated 11^th August 2020 and served on 9^th September 2020 be struck out for having been served contrary to the orders of this Court made on 7^th August 2020 and Rule 77(1) of the Court of Appeal Rules.

2.The grounds on the face of the motion state that the respondents had on application been granted 14 days from 7^th August 2020 within which to serve the notice of appeal, but they did so on 9^th September 2020, which was way after the stipulated time. The applicant’s supporting affidavit sworn on 16^th September 2020 makes the same assertions on oath. There has been no replying affidavit or any answer to the application. Indeed, the respondents’ advocates were absent when the motion came up for hearing on 14^th December 2021 even though they were duly served on 7^th December 2021 with notice of the hearing. They also did not file submissions as directed.

3.Given the uncontroverted evidence that the respondents, despite being granted reprieve by Nambuye, J.A who extended time for them to file their notice of appeal, neglected or failed to serve the same within the days given, the application before us is unanswerable. The failure to serve the notice of appeal within the time given was a failure to take an essential step within the meaning and intendment of Rule 84.

4.In addition, the late service constitutes a default of a condition given by the Court for the validation of the notice of appeal, leaving it incompetent.

5.In the result, the motion is granted and the notice of appeal dated 11^th August 2020 be and is hereby struck out with costs.

6.The applicant shall have the costs of the motion.

DATED AND DELIVERED AT KISUMU THIS 28^TH DAY OF APRIL, 2022.P. O. KIAGE..........................JUDGE OF APPEALMUMBI NGUGI..........................JUDGE OF APPEALF. TUIYOTT..........................JUDGE OF APEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR

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