Case ID:175300

Credit Reference Bureau Africa Ltd v Harrison Kariuki Muru & another [2021] eKLR

Case Metadata

Case Number:

Civil Application 85 of 2019

Parties:

Credit Reference Bureau Africa Ltd v Harrison Kariuki Muru & National Bank of Kenya Limited

Date Delivered:

19 May 2021

Case Class:

Civil

Court:

Court of Appeal at Nyeri

Case Action:

Ruling

Judge(s):

Daniel Kiio Musinga, William Ouko, Agnes Kalekye Murgor

Citation:

Credit Reference Bureau Africa Ltd v Harrison Kariuki Muru & another [2021] eKLR

Case History:

(An application to strike out the Notice of Appeal lodged on 12th April, 2019 arising from the judgment and decree of the High Court of Kenya at Nyeri (Ngaah, J.) dated 29th March, 2019

in H.C.C.C No.97 of 2012)

Court Division:

Civil

County:

Nyeri

History Docket No:

H.C.C.C No.97 of 2012

History Judges:

Jairus Ngaah

History County:

Nyeri

Case Outcome:

Motion dismissed

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

IN THE COURT OF APPEAL

AT NYERI

(CORAM: OUKO, (P), MUSINGA & MURGOR, JJ.A.)

CIVIL APPLICATION NO. 85 OF 2019

BETWEEN

CREDIT REFERENCE BUREAU AFRICA LTD.............................APPLICANT

AND

HARRISON KARIUKI MURU...............................................1

ST

RESPONDENT

NATIONAL BANK OF KENYA LIMITE............................2

ND

RESPONDENT

(An application to strike out the Notice of Appeal lodged on 12

th

April, 2019 arising from the judgment and decree of the High Court of Kenya at Nyeri (Ngaah, J.) dated 29

th

March, 2019

in

H.C.C.C No.97 of 2012)

********

RULING OF THE COURT

By a motion filed on 7

th

June, 2019, the applicant has urged the Court to strike

out the 1

st

respondent’s notice of appeal dated 12

th

April, 2019. The notice evinces

the 1

st

respondent’s intention to challenge the judgment of the High Court dated 29

th

March, 2019 wherein Ngaah, J. dismissed his suit for defamation against the

applicant and 2

nd

respondent.

The applicant’s argues that the 1

st

respondent, contrary to

Rule 77 (1)

of this

Court’s Rules, served the notice of appeal upon the applicant 25 days after lodging

the same; and that despite notice of this default, by the current motion which was served upon him on 13

th

June, 2019, the 1

st

respondent has not made any effort to cure the default in the manner set out in

Pan African Life Assurance Ltd. vs.

Carolyne Chegero Vereso

[ 2015] eKLR.

The 2

nd

respondent, for its part has supported the motion on the grounds that the notice of appeal was served upon it on 30

th

April, 2019, that is, 14 days after it was lodged; and that at the time the instant motion came up for hearing the 1

st

respondent was yet to file and serve the record of appeal.

In response the 1

st

respondent has argued that the motion was brought under the wrong provision of the law,

Rule 80

as opposed to

Rule 84

of this Court’s Rules; and secondly, that the motion was not brought within the prescribed time line with the proviso to

Rule 84

. Whilst admitting the delay in serving the notice of appeal, the 1

st

respondent argued that the delay was not inordinate and expressed regret for the delay. In his view, the delay neither went to the root of the intended appeal nor prejudiced the applicant or the 2

nd

respondent hence was excusable.

Beginning with the competency of the motion, we find that it was clear that the substance of the motion was that the 1

st

respondent had failed to take an essential step of effecting service of the notice of appeal within the requisite timeframe under

Rule 77(1)

of this Court’s Rules. Therefore, notwithstanding the fact that the applicant had cited

Rule 80

as opposed to

Rule 84

it was clear, as can be discerned

from the motion and the respondents’ response, that the motion was anchored on

Rule 84

.

The proviso to

Rule 84

of this Court Rules unequivocally stipulates that a motion to strike out a notice of appeal, shall not be brought after the expiry of thirty days from the date of service of the notice of appeal. See

Total Kenya Limited vs.

Reuben Mulwa Kioko

[2018] eKLR. It is common ground that the notice of appeal was served upon the applicant on 7

th

May, 2019 thus, the window within which the motion could have been filed was on or before 7

th

June, 2019 taking into account that the Madaraka day holiday fell on 1

st

June. As such, the motion which was filed on 7

th

June, 2019 was filed right on time and is therefore properly before us.

Under

Rule 77(1)

the 1

st

respondent was required to serve the notice of appeal within seven days of lodging it, that is, on or before 22

nd

April, 2019. Therefore, there was a delay of about 14 days, excluding Labour Day which fell on 1

st

May, from the 22

nd

April, 2019 up to 7

th

May, 2019 when the notice was actually served on the applicant, which delay is admitted by the 1

st

respondent.

In the exercise of our discretion and in order to do justice between the parties, weighing the prejudice that is likely to be suffered by the applicant against the prejudice to be suffered by the 1

st

respondent if the court strikes out the notice of appeal, we believe justice will be served by excusing the delay and saving the notice of appeal. By expressing these sentiments, we are in no way suggesting that

procedural improprieties are to be ignored altogether but regard has to be paid to the circumstances of each case. See

Fred Onyoni Nyabuto vs. Kimani Walter

[2021] eKLR.

In our view, the delay of 14 days in service of the notice of appeal was not inordinate and did not occasion any prejudice to the applicant.

The totality of the foregoing is that we reject the motion. We nonetheless direct the 1

st

respondent to file and serve the record appeal within 30 days of this ruling failing which the notice of appeal dated 12

th

April, 2019 shall stand struck out without further orders. Costs of the motion shall abide by the outcome of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2021.

W. OUKO, (P)

..........................................

JUDGE OF APPEAL

D. K. MUSINGA

......................................

JUDGE OF APPEAL

A.K. MURGOR

.....................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR