[2022] KECA 130 (KLR)
The court declined to proceed with the application for leave to file the record of appeal out of time because there was no evidence that the parties had been served with a hearing notice or had filed written submissions. Additionally, the 1st respondent was deceased, and no steps had been taken by the appellant to...
Source-derived case information.
- Citation
- [2022] KECA 130 (KLR)
- Parties
- Appellant: Jacob Githinji Kamau (Suing as the legal representative of Kamau Kania); Respondent: Patrick Perimoi; Respondent: Mary Nduta Kagwima
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 275 of 2019
- Procedural Posture
- Civil Appeal / Single Judge Ruling on Application for Leave to File Record of Appeal Out of Time
- Outcome
- Application stood over generally; no determination on merits.
- Judges
- HM Okwengu
- Legal Topics
- Extension of Time, Service of Process, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Githinji Kamau (Suing as the legal representative of Kamau Kania)
Appellant
Patrick Perimoi
Respondent
Mary Nduta Kagwima
Respondent
Procedural Posture
Civil Appeal / Single Judge Ruling on Application for Leave to File Record of Appeal Out of Time
Legal Issues
- 1 Whether the court could proceed to hear the application for leave to file the record of appeal out of time in the absence of evidence of service and written submissions by the parties.
- 2 Whether proper steps had been taken for substitution of the deceased 1st respondent.
Ratio Decidendi
The court declined to proceed with the application for leave to file the record of appeal out of time because there was no evidence that the parties had been served with a hearing notice or had filed written submissions. Additionally, the 1st respondent was deceased, and no steps had been taken by the appellant to substitute the deceased respondent as required by law. In the absence of compliance with procedural requirements for service and substitution, the court marked the application as stood over generally, allowing for a new hearing date to be fixed and proper service to be effected.
Court Disposition
Application stood over generally; no determination on merits.
Orders
- The notice of motion dated 15th October, 2019 is marked as stood over generally.
- A new hearing date may be fixed and the 2nd respondent served.
Full Case Text
Judgment text and source record
22 paragraphs
Kamau v Perimoi & another (Civil Appeal (Application) 275 of 2019) [2022] KECA 130 (KLR) (18 February 2022) (Ruling)
Neutral citation number: [2022] KECA 130 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Civil Appeal (Application) 275 of 2019
HM Okwengu, JA
February 18, 2022
Between
Jacob Githinji Kamau (Suing as the legal representative of Kamau Kania)
Appellant
and
Patrick Perimoi
1st Respondent
Mary Nduta Kagwima
2nd Respondent
(Being an application to seek leave to file the applicant’s record of appeal lodged on 7th October 2019 out of time, being an appeal from the Judgment of the Environment and Land Court at Nakuru (M. Sila, J.) delivered on 12th June, 2019 in Nakuru ELC No. 45 of 2013)
Ruling
[1]This matter was listed before me as a single Judge for hearing of a notice of motion dated 15th October, 2019. The matter was to be heard on 8th December, 2021 by way of written submissions without the presence of parties. The physical file was availed to me and I gave a ruling date on the assumption that parties had filed written submissions.
[2]Upon carefully perusing the file, I have come across a notice of appointment filed on behalf of the 2nd respondent, Mary Nduta Kagwima. I have not seen any written submissions filed by the parties, nor have I have seen any notice served on the parties for the hearing on 8th December 2021, nor did the Registrar of the Court avail to me any notice served through email.
[3]In addition, I have come across a ruling in the file dated 18th November, 2019 by my brother, Kantai, JA indicating that the 1st respondent is deceased, and that proper service of hearing notice was to be effected after appropriate steps are taken by the appellant. There is no indication in the file of any steps having been taken in regard to substitution of the 1st respondent.
[4]In the circumstances, I am unable to deal with the notice of motion dated 15th October, 2019 and therefore mark the same as stood over generally. A new hearing date may be fixed and the 2nd respondent served.
DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF FEBRUARY, 2022. HANNAH OKWENGU................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR