In the Republic of Kenya, the Supreme Court issued a ruling on September 22, 2023, in Petition (Application) E013 of 2023. The case involved Erdemann Property Limited as the appellant, Safaricom Staff Pension Scheme Registered Trustees, Kenya Urban Roads Authority, Mavoko Water & Sewerage Company Limited, Kenya National Highways Authority as respondents, and Everest Limited and Sunset Housing Limited as interested parties. The primary focus of the ruling was the striking out of the Notice of Appeal dated March 23, 2023, and the Record of Appeal dated April 28, 2023. The salient issues and findings in the ruling are outlined below:
Summary of the Ruling
- Jurisdictional Prerequisite: The ruling emphasized that filing a Notice of Appeal is a jurisdictional prerequisite under the Supreme Court Rules, 2020. It stipulates that a notice of appeal must be filed within fourteen (14) days from the date of judgment or ruling subject to appeal.
- Service of Notice of Appeal: The above-stated rules also mandate the petitioner to serve transmitted copies of the notice of appeal upon all persons directly affected by the appeal within seven (7) days of lodging the notice. The appellant failed to comply with this requirement, as the service was effected thirty-five (35) days after filing before the Court of Appeal.
- Importance of Rules Adherence: Even though there are circumstances where the Supreme Court may exercise their discretion as relied upon by the Appellants, the Supreme Court stressed the importance of adhering to the Rules of Court, including the prescribed time limits, to ensure fairness in proceedings. It noted that the infringement of the rules may have serious consequences, potentially affecting the appeal.
- Incomplete Record of Appeal: The Supreme Court Rules, 2020 specifies the contents of a record of appeal, which should include “relevant pleadings required to determine the appeal.” The Supplementary Record of Appeal introduced nine documents that were considered important for the Court of Appeal’s determination. The omission of these documents from the Record of Appeal before the Supreme Court rendered the appeal incomplete.
Ruling and Orders
In light of the above findings, the Supreme Court issued the following orders:
- The Notice of Motion filed by the 1st respondent to strike out the Notice of Appeal and Record of Appeal was allowed.
- Consequently, the Notice of Appeal dated March 23, 2023, and the Record of Appeal dated April 28, 2023, were struck out.
- The 1st respondent was awarded the costs of the application, considering that the other respondents did not file pleadings in response to the application.
Conclusion
The Supreme Court’s ruling in the Erdemann Property Limited case emphasizes the critical importance of adhering to procedural rules, particularly concerning the filing and service of notices of appeal. Failure to do so can have significant consequences, potentially resulting in the striking out of an appeal. The ruling underlines the need for strict compliance with the Rules of Court to ensure fairness in judicial proceedings.
Authors:
Zahra Nechesa – Partner
Nderitu Wang’ombe – Lawyer
