[2019] KEHC 5261 (KLR)
The court found that there was no evidence of service of the application on the respondent and that counsel who purported to appear for the respondent had not filed a notice of appointment. As a result, the court directed that the application be served on the respondent for hearing on merit, emphasizing the...
Source-derived case information.
- Citation
- [2019] KEHC 5261 (KLR)
- Parties
- Appellant: Maureen Agutu; Respondent: Paul Mboya
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2019
- Procedural Posture
- Civil Appeal / Directions on Service of Application for Extension of Time
- Outcome
- Application to be served on the respondent for hearing on merit.
- Judges
- TW Cherere
- Legal Topics
- Extension of Time, Appeal Lodgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maureen Agutu
Appellant
Paul Mboya
Respondent
Procedural Posture
Civil Appeal / Directions on Service of Application for Extension of Time
Legal Issues
- 1 Whether the applicant should be granted an extension of time to lodge an appeal.
- 2 Whether the application was properly served on the respondent.
Ratio Decidendi
The court found that there was no evidence of service of the application on the respondent and that counsel who purported to appear for the respondent had not filed a notice of appointment. As a result, the court directed that the application be served on the respondent for hearing on merit, emphasizing the necessity of proper service before substantive consideration of the application for extension of time.
Court Disposition
Application to be served on the respondent for hearing on merit.
Orders
- The notice of motion dated 27th March, 2019 shall be served on the respondent for hearing on merit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 39 OF 2019
BETWEEN
MAUREEN AGUTU..........APPLICANT/APPELLANT
VERSUS
PAUL MBOYA........................................RESPONDENT
DIRECTIONS
1. By a notice of motion dated 27th March, 2019 brought under Sections 3A, 79G and 95 of the Civil Procedure Act Cap 21 Laws of Kenya and Article 159 of the Constitution, the applicant prays for orders that
1) The Honourable Court be pleased to extend limited for lodging of an appeal
2) That the costs of this application be provided for
2. The application is based on the grounds among others that the delay in filing the appeal was purely inadvertent and is excusable.
3. The application is supported by the affidavit sworn by the Applicant on 27th March, 2019 in which she reiterates the grounds on the face of the application. The deponent avers that delay was occasioned by failure on the part of eth court to supply certified copies of the proceedings and the judgment.
4. The respondent did not file any response. Upon being served with a hearing notice dated 10th April, 2019, The firm of N.E. Mogusu & Associates disputed that it was appearing for the Respondent.
5. A perusal of the file shows that Mr. Nyamweya who purported to appear for the Respondent had not filed a notice of appointment. The file does not contain evidence of service of the application on the Respondent.
6. Consequently, I direct that the notice of motion dated 27th March, 2019 be served on the Respondent for hearing on merit.
DATED, DELIVERED AND SIGNED THIS31ST.DAY OFJULY 2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix & Okodoi
For the Applicant - N/A
For the respondent - N/A