[2005] KECA 41 (KLR)
The court exercised its discretion to extend the time for service of the record of appeal, noting that the application was unopposed by the relevant respondents. The court also found, based on the supporting affidavit, that the 1st respondent had not participated in the High Court proceedings despite being served,...
Source-derived case information.
- Citation
- [2005] KECA 41 (KLR)
- Parties
- Applicant: Kakamega County Council; Respondent: The Chairman Tiriki East Land Disputes Tribunal; Respondent: Jotham Aseka Maheri; Respondent: Laban Aseka; Respondent: John Mukalushi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 197 of 2005
- Procedural Posture
- Civil Application / Application for Extension of Time and Dispensation of Service
- Outcome
- Application allowed in part.
- Judges
- AM Githinji
- Legal Topics
- Extension of Time, Service of Process, Leave to Amend, Dispensation of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kakamega County Council
Applicant
The Chairman Tiriki East Land Disputes Tribunal
Respondent
Jotham Aseka Maheri
Respondent
Laban Aseka
Respondent
John Mukalushi
Respondent
Procedural Posture
Civil Application / Application for Extension of Time and Dispensation of Service
Legal Issues
- 1 Whether the applicant should be granted an extension of time to serve the record of appeal.
- 2 Whether leave to amend the record of appeal should be granted.
- 3 Whether service of the notice of appeal and record of appeal on the 1st respondent should be dispensed with.
Ratio Decidendi
The court exercised its discretion to extend the time for service of the record of appeal, noting that the application was unopposed by the relevant respondents. The court also found, based on the supporting affidavit, that the 1st respondent had not participated in the High Court proceedings despite being served, and therefore it was just to dispense with service of the notice of appeal and record of appeal on the 1st respondent. The prayer for leave to amend was withdrawn and thus not considered. The orders were made accordingly, with costs to be in the appeal.
Court Disposition
Application allowed in part.
Orders
- Extension of time to serve the record of appeal is granted; service already effected on 25th February, 2005 is deemed within time.
- Service of the notice of appeal and record of appeal on the 1st respondent is dispensed with.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: GITHINJI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NAI 197 OF 2005
BETWEEN
KAKAMEGA COUNTY COUNCIL …….………………..APPLICANT
AND
THE CHAIRMAN TIRIKI EAST LAND
DISPUTES TRIBUNAL .……..…………………….....1ST RESPONDENT
JOTHAM ASEKA MAHERI …………………………..2ND RESPONDENT
LABAN ASEKA ………………………………….……3TH RESPONDENT
JOHN MUKALUSHI ………………………….…...…4TH RESPONDENT
(An application for leave to amend, extension of time to serve
record of appeal and leave to dispense with service on 1st respondent at the
High Court of Kenya in Kakamega (Mr. Justice G.B.M. Kariuki) dated 26th
November, 2004
in
H.C. MISC. NO. 2 OF 2003)
**************
R U L I N G
Applicant prays under rules 4, 44 and 76 of the Rules of this Court respectively for three orders namely:-
1. THAT this honourable Court be pleased to extend time within which the record of appeal in Kisumu Civil Appeal No. 6 of 2005 is to be served.
2. THAT this honourable Court be pleased to grant the applicant leave to amend his record of appeal.
3. THAT service of the notice of appeal and record of appeal on the 1st respondent be dispensed with.
Mrs Osodo learned Counsel for the applicant withdrew the second prayer in the application (for leave to amend) but prosecuted, the application in respect of the 1st and 3rd prayers. Mr. Michael Owuor, learned Counsel for 2nd, 3rd, 4th respondents, does not oppose the application for the extension of time.
In respect of the third prayer, Mr. Michael Owuor states that he does not appear for the first respondent but that his clients would prefer that the first respondent be served with the notice and the record of appeal.
The application for the extension of time for service of the record of appeal is not opposed. Consequently, I allow the application for the extension of time and order that the record of appeal already served on the advocates for 2nd, 3rd and 4th respondents on 25th February, 2005 is deemed to be served within time.
Regarding the prayer for the dispensation of service on the first respondent I am satisfied from the supporting affidavit that first respondent though served with the application for judicial review in the superior court never participated in the proceedings.
Accordingly, I allow the third prayer in the application and order that service of the notice of appeal and the record of appeal on the 1st respondent be and is hereby dispensed with. The costs of this application shall be costs in the appeal.
Dated and delivered at Kisumu this 24th day of November 2005.
E. M. GITHINJI
…………………………….
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR