[2015] KECA 50 (KLR)
The court found that the applicant's advocate, having been duly served with a hearing notice, failed to appear to prosecute the application for extension of time. In accordance with Rule 56(1) of the Court of Appeal Rules, the court exercised its discretion to dismiss the application for want of prosecution. The...
Source-derived case information.
- Citation
- [2015] KECA 50 (KLR)
- Parties
- Applicant: Fwamba Mukule Muchenja; Respondent: Kefa Wasike Mukhwana; Respondent: 3 Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 82 of 2014
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed for non-appearance of applicant's advocate
- Judges
- S ole Kantai
- Legal Topics
- Extension of Time, Dismissal for Non Appearance, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fwamba Mukule Muchenja
Applicant
Kefa Wasike Mukhwana
Respondent
3 Others
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the application for extension of time to file notice and record of appeal should be allowed in the absence of the applicant's advocate.
- 2 Whether the application should be dismissed for non-appearance by the applicant's advocate.
Ratio Decidendi
The court found that the applicant's advocate, having been duly served with a hearing notice, failed to appear to prosecute the application for extension of time. In accordance with Rule 56(1) of the Court of Appeal Rules, the court exercised its discretion to dismiss the application for want of prosecution. The absence of the applicant's advocate, without explanation, justified the dismissal and the award of costs to the 1st and 3rd respondents.
Court Disposition
application dismissed for non-appearance of applicant's advocate
Orders
- The application dated 18/12/2014 is dismissed under Rule 56(1) of the Court of Appeal Rules.
- The 1st and 3rd respondents are awarded costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: KANTAI, J. A ( IN CHAMBERS)
CIVIL APPLICATION NO. 82 OF 2014
BETWEEN
FWAMBA MUKULE MUCHENJA……………………....................................APPLICANT
AND
KEFA WASIKE MUKHWANA & 3 OTHERS......................................... RESPONDENT
(An application for extension of time to file Notice of Appeal and Record of Appeal out of time in an intended Appeal from the Judgment and Decree of the High Court of Kenya at Bungoma (Hon. Lady Justice Anne Omollo, J) dated 25th day of April, 2012)
in
BUNGOMA HCCC NO. 16 OF 2000)
*******************
RULING
The applicants advocates M/s Ogone Getand & Co Advocates were served with a hearing Notice for today on 23. 1.2015. They are not present in court to prosecute the application Mr. Getanda, learned counsel for the 1st and 3rd respondents, who has indicated to me that the 2nd and 4th respondents are shown on the title in error as their names were removed in the proceedings in the High Court, has urged me to dismiss the application with costs for none appearance of the advocate to prosecute the application.
In the premises where the advocate for the applicant who has been served with a hearing notice is not present to prosecute the application I dismiss the application dated 18/12/2014 under Rule 56 (1) of the Courts Rules. The 1st and 3rd respondents will have costs of the application.
Dated and delivered at Kisumu this 29th day of January, 2015
S. ole Kantai
……………………………..
JUDGE OF APPEAL
I certify that this is a true
copy of the original
DEPUTY REGISTRAR