[2009] KECA 409 (KLR)
The Court found that, although there is no express provision in the Court of Appeal Rules for joining third parties at the appellate stage, the substance of the application was for leave to serve the notice and record of appeal out of time on Joyce Odongo Ambundo, thereby making her a respondent rather than a third...
Source-derived case information.
- Citation
- [2009] KECA 409 (KLR)
- Parties
- Applicant: Festus Ogada; Respondent: Hans Mollin; Respondent: Joyce Odongo Ambundo (also known as Joyce Ambundo-Muck)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 100 of 2007
- Procedural Posture
- Civil Appeal / Application for Extension of Time to Serve Notice and Record of Appeal on Additional Respondent
- Outcome
- Application allowed.
- Legal Topics
- Extension of Time, Joinder of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Festus Ogada
Applicant
Hans Mollin
Respondent
Joyce Odongo Ambundo (also known as Joyce Ambundo-Muck)
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to Serve Notice and Record of Appeal on Additional Respondent
Legal Issues
- 1 Whether the Court of Appeal can grant extension of time to serve the notice and record of appeal on a party not previously served.
- 2 Whether a party can be joined as a respondent at the appellate stage under the Court of Appeal Rules.
Ratio Decidendi
The Court found that, although there is no express provision in the Court of Appeal Rules for joining third parties at the appellate stage, the substance of the application was for leave to serve the notice and record of appeal out of time on Joyce Odongo Ambundo, thereby making her a respondent rather than a third party. The respondent did not oppose the application. Exercising its discretion under rule 4, the Court allowed the application, granting the applicant leave to serve Joyce with the notice of appeal within twenty-one days and the record of appeal within a further thirty days. The costs of the motion were ordered to be in the appeal.
Court Disposition
Application allowed.
Orders
- The applicant/appellant shall serve Joyce Odongo Ambundo, also known as Joyce Ambundo-Muck, with the notice of appeal within twenty-one (21) days of the date hereof.
- The applicant/appellant shall serve Joyce Odongo Ambundo, also known as Joyce Ambundo-Muck, with the record of appeal within a further thirty (30) days from the date hereof.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
Civil Appeal (Appli) 100 of 2007
FESTUS OGADA ………………………APPLICANT/APPELLANT
VERSUS
HANS MOLLIN …….………………………..……….RESPONDENT
(An application for extension of time to enjoin and serve the record of appeal upon Joyce Odongo Ambundo also known as Joyce Ambundo-Muck as a third party in the proceedings in an appeal from the judgment and decree of the High Court of Kenya at Mombasa (Mr. Justice J. K. Sergon dated 20th April, 2007)
in
H.C.C.C. NO. 284 OF 2000)
*********************
R U L I N G
The application by way of a notice of motion dated 16th December, 2008 and lodged in this Court on 17th December, 2008 is under rule 4 of the Court’s Rules and seeks orders that one Joyce Odongo Ambundoalso known as Joyce Ambundo-Muck, be joined as a third party, that the record of appeal already filed be served upon one Joyce as a third party and so on. There is really no provision in the Court’s Rules for such orders or third parties. But I understand the appellant/applicant to be seeking leave to serve Joyce with a notice of appeal and the record of appeal out of time. Joyce will thus become the second respondent, not a third party. Mr. Ouma is not opposed to the application. I accordingly allow the motion and order that the applicant/appellant shall serve Joyce Odongo Ambundo, also known as Joyce Ambundo-Muck with the notice of appeal within twenty-one (21) days of the date hereof and then serve her with the record of appeal within a further thirty (30) days from the date hereof. The costs of the motion shall be in the appeal.
Dated and delivered at Mombasa this 20th day of January, 2009.
R. S. C. OMOLO
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR