[2018] KECA 503 (KLR)
The Court determined that since the 2nd respondent had not been served with a hearing notice, proceeding with the hearing would violate the principles of fair hearing and due process. The matter was therefore taken out of the hearing list to allow proper service. Additionally, the Court granted the appellant leave...
Source-derived case information.
- Citation
- [2018] KECA 503 (KLR)
- Parties
- Appellant: Andrew Toboso Anyanga; Respondent: Mwale Nicolas Scott Tindi; Respondent: Habil Nanjendo Bushuru; Respondent: Returning Officer, Butere Constituency; Respondent: The Independent Electoral and Boundaries Commission
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 3 of 2017
- Procedural Posture
- Election Petition / Interlocutory Order on Service and Filing of Supplementary Record of Appeal
- Outcome
- Hearing adjourned; directions given for service and filing of supplementary record of appeal.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Service of Process, Supplementary Record of Appeal, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Toboso Anyanga
Appellant
Mwale Nicolas Scott Tindi
Respondent
Habil Nanjendo Bushuru
Respondent
Returning Officer, Butere Constituency
Respondent
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Interlocutory Order on Service and Filing of Supplementary Record of Appeal
Legal Issues
- 1 Whether the 2nd respondent was properly served with a hearing notice.
- 2 Whether the appellant should be granted leave to file and serve a supplementary record of appeal.
Ratio Decidendi
The Court determined that since the 2nd respondent had not been served with a hearing notice, proceeding with the hearing would violate the principles of fair hearing and due process. The matter was therefore taken out of the hearing list to allow proper service. Additionally, the Court granted the appellant leave to file and serve a supplementary record of appeal within 10 days to ensure the appeal record is complete and all parties are adequately informed and prepared for the hearing.
Court Disposition
Hearing adjourned; directions given for service and filing of supplementary record of appeal.
Orders
- The matter is taken out of the hearing list and listed for hearing on 12/4/2018.
- The appellant is to assist the Court in serving the hearing notice on the advocate for the 2nd respondent.
Full Case Text
Judgment text and source record
42 paragraphs
IN THE COURT OF APPEAL
AT KISUIMU
(CORAM: E. M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
ELECTION APPEAL NO. 3 OF 2017
IN THE MATTER OF THE ELECTIONS ACT 2011
AND
IN THE MATTER OF ARTICLES 1, 10, 15, 22, 23, 38, 81, 83,
87 AND 99 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF ELECTION FOR THE MEMBEROF
PARLIAMENT FOR BUTERE CONSTITUENCY
HELD ON8TH OF AUGUST, 2017
BETWEEN
ANDREW TOBOSO ANYANGA...........................APPELLANT
AND
MWALE NICOLAS SCOTT TINDI.......FIRST RESPONDENT
HABIL NANJENDO BUSHURU.......SECOND RESPONDENT
RETURNING OFFICER,
BUTERE (CONSTITUENCY)...............THIRD RESPONDENT
THE IDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.........FOURTH RESPONDENT
(Appeal from the ruling/order of the High Court of Kenya at Kakamega
(Sitati, J)dated 23rd October, 2017
in
Election Petition No. 12 of 2017)
*********************
ORDER OF THE COURT
It is apparent that the 2nd respondent has not been served with a hearing notice. In the circumstances, we take the matter out of the hearing list and direct that it be listed for hearing on 12/4/2018 and that the appellant assists the Court in serving the hearing notice on the advocate for 2nd respondent.
Further, we grant leave to the appellant to file and serve a supplementary rules of appeal within 10 days from today.
DATED at Kisumu this 22nd February, 2018.
E. M. GITHINJI
....................................
JUDGE OF APPEAL
HANNAH OKWENGU
.....................................
JUDGE OF APPEAL
J. MOHAMMED
....................................
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR.