Introduction
1. This ruling determines the applicants notice of motion dated 7th May 2024 seeking orders of stay of execution in respect of the judgment delivered on 18th March 2024 in favour of the respondent.
2. The application is stated to be brought under Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 Rule 1 & 3 of the Civil Procedure Rules 2010. It is premised on the grounds set out on its face and the supporting affidavit of Benson Kiplagat sworn on 7th May 2024. The applicants case is that they are apprehensive that the respondent will execute the judgment delivered on 18th March 2024 unless this court intervenes; that they stand to suffer substantial loss if the orders sought are not granted; that there has been no delay in filing this application and the respondent shall suffer no prejudice if the application is allowed; that they have an arguable appeal that will be rendered nugatory if successful in the absence of stay orders.
3. The respondents filed grounds of opposition dated on 27th May 2024. It is their contention that after delivery of the judgement, the applicants were granted an order of stay of execution for 14 days which has since expired and the defendants have begun the process of execution; that the applicants have not served them with a notice of appeal and have offered no explanation for failure to do so; that an appeal cannot operate as an automatic stay of execution of judgment; that the instant application has been filed out of time, is frivolous and only intended to frustrate the institution from realizing the fruits of her judgment. It is their prayer that the application be dismissed.
SUBMISSIONS
4. The parties agreed to canvass the application by way of written submissions. The applicant filed their submissions on 14th June 2024 while the respondent filed theirs on 1st July 2024.
Applicants submissions
5. The applicant gave a background of the application and framed the following issues for determination;
I )Whether the appeal has a high chance of success;
ii) Whether the applicants stand to suffer substantial loss if stay is not granted.
iii) Whether the respondent stands to suffer any prejudice if the orders sought are not granted.
iv) Whether the application has been brought without any inordinate delay.
v) Whether it is in the interest of justice that the prayers sought in the application be allowed.
6. They submitted that their appeal has high chances of success as the respondent had failed to prove that there was illegality in the way the applicants obtained their title deeds which are still valid defeasible titles under Section 26 of the land registration Act.
7. On substantial loss, they submitted that unless an order of stay is granted, the applicants are in danger of being evicted from the suit properties where they have built their homes. Reliance was placed on the case of Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 OF 1997.
8. On whether the respondents stand to suffer any prejudice if the orders sought are granted, it is submitted that no prejudice will be suffered by the respondent that cannot be compensated by an award of costs as held in the case of RWW v EKW (2019) EKLR.
9. On whether the application was filed without undue delay, they submitted that they applied for typed proceedings vide a letter dated 25th March 2024 but they have not been supplied with the same; thus the delay was not occasioned by them. They further submitted that there is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. To buttress their point, they relied on the case of Simon Wachira Nyaga v Patrick Wamwirwa, Kergoya Civil Appeal No.211 of 2013 (2018) Eklr cited in the case of Cecilia Wanja Waweru v Jackson Wanaina Muiruri & Another (2014) eklr.
Respondent’s submissions
10. In her submissions, the respondent gave a background of the application and framed the following issues for determination;
i) Whether the appeal raises triable issues with high chances of success;
ii) Whether the application has been filed after an inordinate delay.
iii) Whether the applicant has offered any security for due performance of the decree.
11. The respondent submitted that the applicants did not serve them with the notice of appeal and have failed to do so to date thus raising the question of competency of the notice of appeal. It is submitted that non service of the notice of appeal is contrary to the provisions of Rule 79(1) of the Court of Appeal Rules. It is their case that there is no valid notice of appeal on record due to non-service upon the respondent. To buttress their point, they relied on the case of Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others (2016) eklr.
12. On the issue of delay, they submitted that there was delay in filing the application. Upon delivery of judgement, the applicants were granted stay of 14 days which lapsed on 1st April 2024; that the delay of 35 days is inordinate and no convincing explanation has been offered for the delay. They relied on the case of Simon Wachira Nyaga v Patrick Wamwirwa, cited in the case of Cecilia Wanja Waweru v Jackson Wanaina Muiruri, supra.
Analysis and Determination.
13. I have considered the application for stay, grounds thereof, supporting affidavit and annexures. I have also considered the replying affidavit and submissions together with the case law cited by both counsels for their respective clients and I find the issues for determination to be;
i) Whether failure to serve a notice of appeal renders the notice of appeal incompetent;
ii) If the answer to (i) is negative, whether the applicants have made up a case for being granted the orders sought;
iii) What orders should the court make?
14. Rule 79 of the Court of Appeal rules provides:
An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly affected by the appeal:
Provided that the Court may, on application which may be made ex parte, within seven days after the lodging of the notice of appeal, direct that service need not be effected on any person who did not take part in the proceedings in the superior court.
Where any person who is required to be served with a copy of a notice of appeal gave any address for service in or in connection with the proceedings in the superior court, and has not subsequently given any other address for service, the copy of the notice of appeal may be served on that person at that address, notwithstanding that it may be that of an advocate who has not been retained for the purpose of an appeal.’’
15. In the case before the court for consideration, the notice of appeal was filed but was not served upon the respondent. This has not been controverted by the applicants and the court record reveals no evidence of service.
16. In the case of Kericho Technical Institute v Finmax Community Based Group & 3 others [2016] eKLR, the court of appeal held;
‘[18] Further Rule 77 (1) of the Court of Appeal Rules provide that: -
“An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal……….”
[19] The respondents did not serve the notice of appeal within the required period. No satisfactory explanation has been given for this failure. Instead the respondents have trivialized the rule by contending that service of the notice was simply meant to inform the parties of the appeal, and that this intention was achieved when they annexed a copy of the notice of appeal to their application for stay of execution that was served on the applicant. While we are mindful of Article 159 (1)(d) of the Constitution that justice should be administered without undue regard to procedural technicalities, we reiterate this Court’s view that the requirement for service of a notice of appeal is not a mere technicality. We reiterate the position of this Court as stated in the following decisions: The case of Prime Bank Limited v D.J.Lowe & Company Limited [2015] eKLR, where this Court stated as follows:-
“The importance of the last requirement has been explained by this Court in Sheikh v Sheikh (1985) KLR 649 as follows;
“The object of rule 76 (1) (today Rule 77 (1)) of the Court of Appeal Rules in obliging an appellant to serve copies of the notice of appeal on the parties directly affected by it is that the rights of a party likely to be directly affected by the result of the appeal should not be affected without the party being provided an opportunity of being heard.”
[20] In M.S vs N.K Civil Appeal No. 277/2005 (Unreported) decided on 12th February, 2010 the Court of Appeal made the following emphasis:
“It follows that although Rule 76 (read 77) is a procedural rule based on the Appellate Jurisdiction Act, it has deeper roots in the Constitution so as to safeguard due process. Indeed, in the hierarchy of fundamental rights, the right of hearing ranks very high. For this reason we think that failure to serve the notice of appeal renders a notice of appeal incompetent including the record of appeal itself. This is because Rule 76 (1) is a mandatory requirement and provides that all persons directly affected by the appeal must be served with a notice of appeal ….”
[21] From the foregoing, we find that the notice of appeal filed by the respondents was not served within the 7 days from the date of filing as required under Rule 77 of the Court of Appeal Rules nor was the record of appeal filed within 60 days from the date when the notice of appeal was lodged as provided under Rule 82(1) and (2) of the Court Rules. We find that the respondents failed to take essential steps within the prescribed time and therefore in accordance with Rule 84 of the Court Rules, we strike out the notice of appeal’’
17. Also see the case of Kikambala Development Company Limited & 3 others v Director of Public Prosecutions & 3 others Civil Application 183 & 184 of 2020 (consolidated) (2022) Eklr where the court held;
“On the issue whether failure to serve a Notice of Appeal in time is fatal or not, the law is now settled. Rule 79(1) is couched in mandatory terms that service of the Notice of Appeal must always be effected upon the respondent and all parties affected by it in accordance with the Rule. Failure to serve within the period prescribed by Rule 79 (1) is fatal Cases abound from this court which support this position, Including Stephen Kinoro Kamau vs. Wanjiku Kinuthia & another [2005] eKLR.”
18. In applying the law and the cited authorities to the circumstances of this case, it is not in dispute that the applicants failed to serve the notice of appeal within the required period and at all. Service of the notice of appeal is an essential step in the proceedings that must be taken within a prescribed time.
19. Consequently, I find that failure to serve the notice of appeal renders it incompetent. There being no competent notice of appeal before this court, I find no need to consider the application for stay of execution on its merits and l proceed to dismiss it with costs to the respondent.
20. Orders accordingly.
Dated, signed and delivered at Iten this 25th day of July, 2024.
Ruling delivered virtually in the absence of;-
The Applicants
The Respondents
Court Assistant: Alex