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Chepyegon v Chepyegon (Civil Application E061 of 2022) [2023] KECA 798 (KLR) (30 June 2023) (Ruling)
Neutral citation:
[2023] KECA 798 (KLR)
Republic of Kenya
Civil Application E061 of 2022
F Sichale, FA Ochieng & LA Achode, JJA
June 30, 2023
Between
Wilson Chepyegon
Applicant
and
Kimosop Chepyegon
Respondent
(An application to strike out or withdraw a Notice of Appeal from the judgment of the Environment and Land Court at Eldoret (Kibunja, J.) dated 9th February 2022) IN (ELC Case No. 372 OF 2014
Environment & Land Case 372 of 2014
)
Ruling
1.Wilson Chepyegon (the applicant herein), has vide a motion dated April 26, 2022, brought pursuant to the provisions of Rule 77 (1) and 84 of the Court of Appeal Rules, section 3A of the Appellate Jurisdiction Act and all other enabling provisions of the law moved the Court to strike out the Notice of Appeal dated February 21, 2022 filed by the respondent. In the alternative, the applicant seeks an order that the said Notice of Appeal be deemed withdrawn.
2.The motion is supported on the grounds on the motion and a supporting affidavit sworn by the applicant who deposed inter alia that the trial court delivered a judgment the subject of the intended appeal on February 9, 2022, and that being dissatisfied with the aforesaid judgment, the respondent lodged a Notice of Appeal dated February 21, 2022 and failed to effect service of the same on the applicant or his advocates within the stipulated timelines.
3.He further deposed that the delay in service of the appeal or to file the appeal was inordinate, unreasonable and prejudicial and that it was in the interests of justice for the application to be allowed.
4.The motion was opposed vide a replying affidavit sworn by the respondent on November 14, 2022, who deposed inter alia that after delivery of the impugned judgment he became unwell and had gone to hospital for treatment of a chronic illness which had afflicted and incapacitated him since 2017 and that as such, he could not raise funds and that further failure to serve the Notice of Appeal/appeal was not intentional but due to illness aforesaid.
5.When the matter came up for plenary hearing on March 20, 2023, Mr. Tororei learned counsel appeared for the applicant whereas Mr. Chebii appeared for the respondent. Both parties relied on their written submissions dated November 7, 2022 and March 1, 2023 respectively.
6.It was submitted for the applicant that the instant motion had been filed within 30 days in compliance with Rule 84 of the Court of Appeal Rules and that despite the respondent filing his Notice of Appeal within time, he did not effect service on the applicant until April 20, 2022, which was close to 60 days from the date of filing the Notice of Appeal in blatant violation of Rule 77 (1) of the Court of Appeal Rules and that further, no good reason had been advanced for failure to effect service on time. It was further submitted that to date the respondent had not served the applicant with any appeal.
7.On the other hand, the respondent reiterated that failure to serve the Notice of Appeal within the prescribed time was inadvertent which was excusable as he had been afflicted by poor health coupled with failure to communicate with his counsel leading to the late service of the Notice of Appeal and the appeal within the prescribed time.
8.We have carefully considered the applicant’s motion, the grounds thereof, the supporting affidavit, the replying affidavit, the rival submissions by the parties, the cited authorities and the law.
9.It is indeed common ground that the impugned judgment was delivered on February 9, 2022, while the Notice of Appeal was filed on February 23, 2022, which was well within time. Subsequently thereafter the Notice of Appeal was served on the applicant on April 20, 2022 which was approximately 52 days from the date of filing in flagrant breach of Rule 77 (1) of this court which provides;
10.It is imperative to note that the above Rule is couched in mandatory terms. Whereas the respondent contends that failure to serve the Notice of Appeal was on account of ill health and we sympathize with him, the respondent could not on one hand be heard to be saying that he filed the Notice of Appeal within the stipulated timelines and contend on the other hand that he was unable to serve the same on account of ill health. We are not satisfied by the explanation given by the respondent.
11.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR, Kiage JA succinctly stated:
12.We fully agree and associate ourselves with the sentiments expressed by the Learned Judge in the above case.
13.It is in view of the foregoing that we find merit in the applicant’s motion dated April 26, 2022, which we accordingly allow and strike out the respondent’s Notice of Appeal dated February 21, 2022 with no order as to costs.It is so ordered.
DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE, 2023.F. SICHALE...........................JUDGE OF APPEALF. OCHIENG............................JUDGE OF APPEALL. ACHODE............................ JUDGE OF APPEAL I certify that this is a true copy of the original.SignedDEPUTY REGISTRAR
