[2021] KECA 1047 (KLR)
The court declined to proceed with the application for extension of time because the respondent had not been served with the application or the hearing notice. The absence of evidence of service was a fundamental procedural defect, as it deprived the respondent of the opportunity to respond. The court therefore...
Source-derived case information.
- Citation
- [2021] KECA 1047 (KLR)
- Parties
- Applicant: Charles Muriongo; Applicant: Anthony Muriongo; Respondent: Francis Omondi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 1 of 2020
- Procedural Posture
- Miscellaneous Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Application stood over for proper service; no determination on merits.
- Judges
- AK Murgor
- Legal Topics
- Extension of Time, Service of Process, Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Muriongo
Applicant
Anthony Muriongo
Applicant
Francis Omondi
Respondent
Procedural Posture
Miscellaneous Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants should be granted an extension of time to file a Notice of Appeal out of time.
- 2 Whether the respondent was properly served with the application and hearing notice.
Ratio Decidendi
The court declined to proceed with the application for extension of time because the respondent had not been served with the application or the hearing notice. The absence of evidence of service was a fundamental procedural defect, as it deprived the respondent of the opportunity to respond. The court therefore ordered that the applicants serve the respondent with the application, after which a new hearing date could be set. The registry was directed to ensure proper service of the hearing notice on all parties.
Court Disposition
Application stood over for proper service; no determination on merits.
Orders
- Applicants to serve the respondent with the application.
- Another date for hearing of the application to be fixed in the registry after service.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
CORAM: MURGOR J.A.
CIVIL APPLICATION NO. 1 OF 2020
BETWEEN
1. CHARLES MURIONGO
2. ANTHONY MURIONGO..........................................................................................APPLICANTS
AND
FRANCIS OMONDI...................................................................................................RESPONDENTS
(Application for extension of time a Notice of Appeal out of time from the judgment and decree of the
Environment and Land Court at Kakamega, (N. Matheka, J). dated 7thMay 2019
in
ELC Cause No. 224 of 2014 (OS))
*************************
ORDER
This Notice of Motion lodged on 6th January 2020, where the applicants, Charles MuriongoandAnthony Muriongohave applied for time to be extended under Rule 4 of the Court of Appeal Rules 2010 to file a Notice of Appeal out of time.
Upon considering the application, a ruling was reserved for 29th January 2020. However, further perusal of the record discloses that the respondent, Francis Omondiwas not served with a Hearing Notice and neither is there any evidence to support service of the application on him. As a consequence, this could be the reason for his failure to file any replying affidavit or submissions.
In view of the above, the applicants are ordered to serve the respondent with the application, following which, another date for hearing of the application can be fixed in the registry on a propriety basis. The registry is directed to ensure that the hearing notice is duly served on all parties
DATED at NAIROBI this 29thday of January, 2021.
A.K. MURGOR
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR