[2020] KEHC 4697 (KLR)
The court held that service of the appeal on the respondent's trial court advocates, who had not placed themselves on record for the appeal and expressly indicated they lacked instructions, does not constitute proper service on the respondent. Since an appeal is a distinct proceeding, the respondent must be served...
Source-derived case information.
- Citation
- [2020] KEHC 4697 (KLR)
- Parties
- Appellant: Judith Anyango; Respondent: Invesco Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 172 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Service of Appeal
- Outcome
- Service of the appeal on the respondent's trial court advocates was improper; direct service on the respondent is required before the appeal can proceed.
- Judges
- DN Musyoka
- Legal Topics
- Service of Process, Appeals Procedure, Representation by Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Anyango
Appellant
Invesco Assurance Company Limited
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Service of Appeal
Legal Issues
- 1 Whether service of the appeal on the respondent's trial court advocates constitutes proper service on the respondent in the appellate proceedings.
- 2 Whether the court should proceed to determine the appeal before the respondent is directly served.
Ratio Decidendi
The court held that service of the appeal on the respondent's trial court advocates, who had not placed themselves on record for the appeal and expressly indicated they lacked instructions, does not constitute proper service on the respondent. Since an appeal is a distinct proceeding, the respondent must be served directly to ensure fair opportunity to participate and instruct counsel. Proceeding without such service would be injudicious and contrary to procedural fairness. The court therefore ordered that the respondent be served directly before any further steps are taken in the appeal.
Court Disposition
Service of the appeal on the respondent's trial court advocates was improper; direct service on the respondent is required before the appeal can proceed.
Orders
- The appellant shall serve the appeal documents directly on the respondent.
- The matter shall be mentioned after thirty days to confirm service.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 172 OF 2018
(An appeal arising from the judgment and decree of the Hon. W Lopokoiyit, Resident Magistrate (RM), in Kakamega CMCCC No. 312 of 2017 of 29th November 2018)
JUDITH ANYANGO………………………….………………..APPELLANT
VERSUS
INVESCO ASSURANCE COMPANY LIMITED..............…RESPONDENT
RULING
1. In the course of preparing judgement in the appeal herein, I have established that the appeal was never served on the respondent. Instead, it was served on the advocates who acted for the respondent at the trial court.
2. The affidavits of service on record all indicate that the said advocates, Messrs. Kimanga & Company Advocates, received service, but endorsed that they had no instructions. Indeed, the said firm of advocates never placed itself on record as having been appointed to act in the matter for the respondent.
3. It should not be assumed that since a firm of advocates acted for a party at the trial, they would also act for the same party on appeal. The appeal is a separate suit or cause. The fresh court process should, therefore, be served on the party directly, so that it can instruct counsel to appear and act for it.
4. Consequently, it would be injudicious to proceed to determine the appeal herein, before the respondent is served directly, to enable it participate in the proceedings. Let service be done first on the respondent directly. The matter shall be mentioned after thirty days to confirm service. It is so ordered.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGATHIS 26th DAY OFJune 2020
W. MUSYOKA
JUDGE