[2011] KEHC 494 (KLR)
The court found that the appellant had made sufficient efforts to serve the respondents personally, including attempts to trace them and confirmation that their previous advocate was no longer on record. Given these circumstances, and in the absence of any opposition, the court exercised its discretion to allow...
Source-derived case information.
- Citation
- [2011] KEHC 494 (KLR)
- Parties
- Appellant: Fredrick Oenga Nyamwega; Respondent: Hilltop Taxis Ltd; Respondent: Barnabas Kiprop Leting
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 537 of 2004
- Procedural Posture
- Civil Appeal / Application for Substituted Service Pending Appeal Hearing
- Outcome
- Application for substituted service allowed.
- Legal Topics
- Negligence, Personal Injury, Substituted Service, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Oenga Nyamwega
Appellant
Hilltop Taxis Ltd
Respondent
Barnabas Kiprop Leting
Respondent
Procedural Posture
Civil Appeal / Application for Substituted Service Pending Appeal Hearing
Legal Issues
- 1 Whether the appellant demonstrated sufficient efforts to serve the respondents personally.
- 2 Whether substituted service by registered post should be allowed in the circumstances.
Ratio Decidendi
The court found that the appellant had made sufficient efforts to serve the respondents personally, including attempts to trace them and confirmation that their previous advocate was no longer on record. Given these circumstances, and in the absence of any opposition, the court exercised its discretion to allow substituted service by registered post to the respondents' last known address. The court further directed that proof of posting and an affidavit of service be provided to ensure compliance with procedural requirements.
Court Disposition
Application for substituted service allowed.
Orders
- Substituted service of all required documents to be effected by registered post to the respondents' last known address.
- Applicant to retain an envelope with equivalent stamps as the one sent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 537 OF 2004
FREDRICK OENGA NYAMWEGA...........................................APPELLANT/ORIGINAL PLAINTIFF
VERSUS
HILLTOP TAXIS LTD.........................................................................................1ST RESPONDENT
BARNABAS KIPROP LETING..........................2ND RESPONDENT/ORIGINAL DEFENDANTS
(Being an appeal from the Judgment of C. Meoli Esq Senior Principal Magistrate dated
9th July 2004 in CMCC 6847 of 2000 at Milimani Commercial Courts, Nairobi)
R U L I N G
Application to Serve through Substituted ServiceDated 7th July 2011
I.INTRODUCTION
1. The Subordinate Court case involves a running down case. The appellant original plaintiff had sued the first and second respondent in TORT seeking damages due to their negligence whereby he was run down by their motor vehicle that caused him injury.
2. The trial magistrate ruled that no negligence had been proved. The suit was dismissed.
IIAPPLICATION 7TH JULY 2011
3. The appellant filed appeal on 22nd July 2004. The respondents were not served with any documents except the record of appeal filed on 22nd November 2007. The reasons being that their advocate ceased to act for them being M/s Kipkorir Titoo Kiara & Co Advocates. Their last known address is the only contact the advocate had.
4. Efforts to serve them personally was not fruitful. They asked for substituted service to be effected.
IIIFINDINGS
5. The applicant has demonstrated efforts made to trace the respondents (Muga SPDR) (5th May 2009). Their advocate is no longer on record.
6. I would agree and grant the application for service to be effected by substitutive service. The advocate has requested this be done by registered post to their last known address.
7. This is granted. Order that the substituted service be by registered post. There must be an envelope containing the equivalent number of stamps, retained by the applicant, as the one sent. There is required to be a certificate of posting. An affidavit of service to this effect be made.
8. All documents required be served through the registered post being the record of appeal, the memorandum of appeal and hearing notice for the next direction date.
9. Costs in the appeal.
DATED THIS 4th DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) J Nyakiangana instructed by Julius Nyakiangana & Co Advocatesfor the appellant
ii) No appearance for the respondents