Failure to serve suit papers renders appeal incompetent

Republic of Kenya

IN THE COURT OF APPEAL AT NAIROBI

CIVIL APPEAL (APPLICATION) NO 277 OF 2005

BETWEEN

MRADULA SURESH KANTARIA....APPLICANT/RESPONDENT AND

SURESH NANALAL KANTARIA.... RESPONDENT/APPELLANT

BENCH: Justices Erastus Githinji, Onyango Otieno and Joseph Nyamu

RULING: 12.2.2010

By Nyakundi Nyamboga

Businessman Suresh Nanalal Kantaria was in the Court of Appeal a day after the High Court ordered him to pay his estranged wife Sh80 million.

He lodged a notice to appeal the judgement by Justice Mary Ang’awa dated May 10, 2005 in which he was also required to give Mradula Suresh Kantaria 50 per cent shareholding in some of the limited liability companies that existed during the subsistence of their marriage.

He was also to set aside Sh10 million for their daughter’s schooling and care. Also lodged was a record of appeal.

Mradula filed an application on December 1, 2005 to strike out the notice of appeal and record of appeal on the grounds her ex-lover had not served them on Samina Mohammed Ishaq, a co-respondent in the divorce cause in which apportionment of property was made in the resultant judgement.

Other grounds cited were failure to serve Tarameera Limited, the registered owner of LR No 9104/133, situated in Gigiri, awarded to the respondent; failure to serve Jaribu Ltd, a company whose assets were distributed in the judgement and were subject of the originating summons; failure to serve Kenwood Trading company; and failure to serve Meera, a daughter of the two parties, who was awarded Sh10 million subject of the amount being invested on her behalf by the respondent.

During the hearing of the application, Mradula’s lawyer Harit Sheth submitted that three of the five unserved parties were directly affected by the appeal and therefore ought to have been served with notice of the appeal, pursuant to Rule 76(1) of the Court of Appeal rules.

Rule 76(1) is a procedural one and provides that all persons directly affected by the appeal must be served with a notice of appeal or the court is requested upon an application by the appellant to direct that service need not be effected on any person who took no part in the proceedings in the High Court. As regards Ishaq, Sheth submitted that since she had entered appearance in the divorce cause but had never taken part in the proceedings in the High Court, an application to the Court of Appeal to dispense with service ought to have been made.

No such application was made, therefore offending Rule 76(1) of the Court of Appeal rules. Failure to comply with the Court of Appeal rules rendered the notice of appeal and the record of appeal incompetent. However, the trader’s lawyer Stephen Mwenesi urged court not to concentrate on technicalities at the expense of serving the ends of justice.

He argued there was no need to serve ‘third parties’ when, according to the decree, the Gigiri property was awarded to his client to hold it in trust. According to the decree, the parties directly affected by the appeal were the applicant and the respondent.

As regards the award of Sh10 million to their daughter, Meera, it was to be invested on her behalf by the respondent and, therefore, it was only the respondent who was affected at the moment. It has not been confirmed if the investment has already been made on her behalf. As regards the other properties, the partners held 50 per cent of the shares as per the judgement. Sh80m was awarded to Mradula in order to forgo her interest in Jaribu Credit Trading Company and other companies except Tarameera Limited.

Said Mwenesi: "All the court needs to look at is the wording of the decree including brackets and punctuations and if it did that, it would reach the conclusion that there were no other parties directly affected by the appeal."

As regards Ishaq, Mwenesi said she never took part in proceedings in the High Court, there was no order against her in the decree and that the intended appeal was not targeted at the decree absolute.

Inherent powers

He urged the court to invoke its inherent powers under Rule 1(3) of its rules in order to prevent abuse of its process. Non-service of notice of appeal on Ishaq should never be used to lock out a party from the corridors of justice.

It would be in the interest of justice that the respondent be allowed to pursue the outcome of the intended appeal.

The lawyer urged the court to save the notice of appeal and the bulky record of appeal — five large volumes the size of a mini fridge — by giving effect to the overriding objective of sections 3A and 3B of the Appellate Jurisdiction Act, to serve the wider interests of justice by overlooking the technicalities of procedure.

And what was the three-judge bench of the Court of Appeal’s take on the submissions? "We find ourselves unable to save the notice of appeal and record of appeal because the effect of saving them would firstly be at the expense of excluding affected parties in the appeal and secondly, this court’s rules provide for dispensation of service and there is no proof the respondent did give any thought to apply for dispensation.

In their view, Meera and companies, Jaribu Credit Trading company, Kenwood Trading company and Tarameera Limited are all directly affected by the appeal in terms of Rule 76(1) of the Court’s Rules and for that reason, ought to have been served with the notice of appeal, but were not.

It did not matter that the applicant and the respondent had some shares in aforementioned companies or that one or both managed the companies. The judges noted these firms are directly affected by the appeal since the orders made in 2005 affect their respective property rights and other interest as per the decree. After all, the respondent had challenged awards made against the three firms.

Meera, too, has a direct interest in the decree obtained by virtue of the Sh10 million award and, therefore, she ought to have been served with the notice of appeal.

And on Ishaq, the judges said she ought to have been served with a notice of appeal or in the alternative, the respondent ought to have sought exemption from serving her with a notice of appeal.

Said the judges: "We think failure to serve the notice of appeal renders a notice of appeal incompetent, including the record of appeal itself." They proceeded to strike out both with costs to the applicant.

　

MY TAKE

Now you know. If you are unhappy with a decision of a court of law and wish to appeal, the notice of appeal and the record of appeal must be served on all those who will be directly affected by the outcome of the appeal, regardless of whether they took part in the proceedings in the court or not. Failure to observe this is fatal, says the highest court in the land.

However, I am not persuaded the decision by the highest court is not informed more by technicalities than substantial justice. In my view, substantial justice in this case would have been served had the court ordered that all directly affected parties be served afresh with both the notice and the record of appeal to put their best foot forward. The court says it would not give such an order because it is five years after the High Court judgement and the parties could have changed their positions or their rights and interests affected due to passage of time.

Such a course would result in the extension of time stipulated for service of a notice of appeal. That would be unjust to the affected parties. But is the respondent to blame for the slow wheels of justice?

The writer is Standard Group Associate Editor—Legal

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