[2014] KEHC 3804 (KLR)
The court found that there was no evidence on record that the application dated 20/11/2013 was served on the appellant/respondent. As a result, the court could not conclude that the appellant/respondent had failed to respond to the application. The court held that the application was fixed for hearing prematurely...
Source-derived case information.
- Citation
- [2014] KEHC 3804 (KLR)
- Parties
- Appellant: Kukena Sacco; Respondent: Catherine Wamutira Cubi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 2011
- Procedural Posture
- Civil Appeal / Interlocutory Application (notice of Motion) Seeking Dismissal of Appeal for Want of Prosecution
- Outcome
- Application not granted; directions issued for proper service and further hearing.
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kukena Sacco
Appellant
Catherine Wamutira Cubi
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application (notice of Motion) Seeking Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution.
- 2 Whether there was proper service of the application on the appellant/respondent.
- 3 Whether the application was fixed for hearing prematurely.
Ratio Decidendi
The court found that there was no evidence on record that the application dated 20/11/2013 was served on the appellant/respondent. As a result, the court could not conclude that the appellant/respondent had failed to respond to the application. The court held that the application was fixed for hearing prematurely and directed that the respondent/applicant serve the application on the appellant/respondent. The appellant/respondent was granted seven days from the date of service to file a response, and the respondent/applicant was granted three days to reply. The registry was directed to fix the application for hearing at the earliest opportunity. The court thus declined to dismiss the...
Court Disposition
Application not granted; directions issued for proper service and further hearing.
Orders
- The respondent/applicant to serve the appellant/respondent with the application dated 20/11/2013.
- The appellant/respondent to file its response within 7 days of service.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL NO. 123 OF 2011
KUKENA SACCO..................…..........APPELLANT/RESPONDENT
VERSUS
CATHERINE WAMUTIRA CUBI............RESPONDENT/APPLICANT
R U L I N G
This is the Notice of Motion dated 20th November, 2013 brought under Order 42 Rule 35(2), Order 51 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act for the following orders:-
(a) The appeal be dismissed with costs for want of prosecution.
(b) The appeal be dismissed as it does not lie or at all.
(c) The Respondent/Applicant be granted costs of this application.
The application is premised on the two grounds on its face plus the supporting affidavit of Wachira Mari advocate sworn on 21st November 2013.
Mr. Mari who appeared for the Respondent/Applicant told this Court on 27/5/2014 that the Appellant/Respondent had filed no response to the application and the Court allowed him to proceed with the hearing of the application.
However upon perusal of the record I have only found one affidavit of service by one Dickson Musyimi confirming service of the hearing notice dated 11/4/2014.
Also on record is a copy of a letter dated 19/3/2014 inviting the Appellant/Respondent for fixing of a hearing date.
There is however no evidence of service of this application dated 20/11/2013 on the Appellant/Respondent. Its therefore not clear whether counsel was served or not. I can not therefore make a finding that the Appellant/Aespondent has failed to respond to the said application.
The application was therefore fixed for hearing prematurely. I hereby direct the Respondent/Applicant to serve the Appellant/Respondent with the application dated 20/11/2013. The Appellant/Respondent to file its response within 7 days of service.
The Respondent/Applicant to have corresponding leave to respond within 3 days of service.
The Registry to fix the application for hearing within the shortest time possible.
DELIVERED, DATED AND SIGNED AT EMBU THIS 10TH DAY OF JULY, 2014.
H.I. ONG’UDI
JUDGE
In the presence of:-
Mr. Mogusu for Wachira for Respondent
Njue CC