https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1440

Mala v Sumba & another (Civil Application E039 of 2026) [2026] KECA 1440 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1440 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E039 of 2026 EC Mwita, JA July 10, 2026 Between Fredrick Omondi Mala Applicant and Nicholas Odera Sumba 1st Respondent Land Registrar Siaya 2nd Respondent (Being an application for leave to appeal against the judgment of the High Court of Kenya at Siaya (Kemei, J) dated and delivered on 20th February 2026 in HCCA No. E039 of 202) Ruling 1.Fredrick Omondi Mala, (the applicant), has vide a motion on notice of application dated 23rd February 2026, brought pursuant to the provisions of sections, 1A, 1B, 2A and 79G, of the Civil Procedure Act, sought leave to appeal against the judgment of the High Court of Kenya at Siaya (Kemei, J) dated and delivered on 20th February 2026 in High Court Civil Appeal No. E039 of 2025. The application further seeks stay of execution of any proceedings against all the orders requested at the High Court in Siaya and Winam Magistrate’s court case No. E789 of 2025, pending the hearing and determination of the intended appeal. 2.The motion is premised on the grounds on its face and the affidavit sworn by the applicant on even date. The applicant states that he was the defendant (may be respondent) at the High Court in Siaya; that he sued the respondents for damages and threatening to kill him which made him be arrested and charged at Winam Law courts, and he wants all the proceedings and orders made in favour of the respondents set aside. According to the applicant, he was late in filing the appeal because the Deputy Registrar was late in signing his notice of appeal. 3.In response to the application, Nicholas Odera Sumba, the 1st respondent, has filed a replying affidavit. The gist of the affidavit is that by virtue of section 38(1) and (2) of the Small Claims Court Act, there is no second appeal to this Court because the judgment of the High Court at Siaya was on an appeal from the Small Claims Court and, therefore, no further appeal lies to this Court. 4.The record shows that a hearing notice was served by the Court on the parties on 6th June 2026 for the hearing of this application on 30th June 2026, with specific directions that the parties file and serve their written submissions within 24 hours, if they had not already done so. The applicant was also directed to serve the hearing notice for hearing of the application for 30th June 2026 on the respondents and file an affidavit of service to that effect. However, at the time of considering this application on 30th June 2026, there was neither an affidavit of service on record showing that the applicant served the respondents with the hearing notice for 30th June 2026 as directed, nor written submissions by any of the parties as directed by the Court. 5.In the circumstances, the applicant having not complied with the directions issued by the Court to serve the hearing notice, and the parties having also not filed written submissions to the application, the application dated 23rd February 2026 is hereby dismissed with no orders on costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E. C. MWITA..............................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR