[2016] KEHC 5557 (KLR)
The court held that it would be unjust to proceed with the determination of the application for leave to appeal out of time without the participation of all necessary parties, specifically the second and third respondents who had not been served. The absence of service deprived the respondents of the opportunity to...
Source-derived case information.
- Citation
- [2016] KEHC 5557 (KLR)
- Parties
- Applicant: Moses Kamau Njuguna; Respondent: Duncan Kamau Mwangi; Respondent: Peter Mukiri Gateri; Respondent: Brookside Dairy Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 274 of 2010
- Procedural Posture
- Miscellaneous Application / Application for Leave to File Appeal Out of Time
- Outcome
- Application stood over for service; no substantive orders granted.
- Judges
- JK Mulwa
- Legal Topics
- Leave to Appeal Out of Time, Service of Process, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kamau Njuguna
Applicant
Duncan Kamau Mwangi
Respondent
Peter Mukiri Gateri
Respondent
Brookside Dairy Limited
Respondent
Procedural Posture
Miscellaneous Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment in Nakuru CMCC No. 1750 of 2006.
- 2 Whether the application can be determined ex-parte without service upon the second and third respondents.
Ratio Decidendi
The court held that it would be unjust to proceed with the determination of the application for leave to appeal out of time without the participation of all necessary parties, specifically the second and third respondents who had not been served. The absence of service deprived the respondents of the opportunity to be heard, and the court emphasized the importance of procedural fairness and the right to be heard before any adverse orders are made. Consequently, the court declined to hear the application ex-parte and directed that the applicant must serve the application upon all respondents before the matter could proceed to hearing.
Court Disposition
Application stood over for service; no substantive orders granted.
Orders
- The applicant is directed to serve the application upon all respondents.
- A fresh hearing date may be taken at the registry after service.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. CIVIL APPLICATION 274 OF 2010
MOSES KAMAU NJUGUNA......................................................... APPLICANT
VERSUS
DUNCAN KAMAU MWANGI..............................................1ST RESPONDENT
PETER MUKIRI GATERI......................................................2NDRESPONDENT
BROOKSIDE DAIRY LIMITED............................................3RD RESPONDENT
(Appeal from the Ruling of Nakuru Chief Magistrate Hon. Gilbert Mutembei dated 27th February, 2006, in CMCC 1750 OF 2006)
RULING
1. The application dated 4th June 2010 brought by Moses Kamau Njuguna under the provisions of Section 79G of the Civil Procedure Act and Order 50 Rule 1of theCivil Procedure Rules seeks for leave to file an appeal out of time against the judgment of the trial court in Nakuru CMCC No. 1750 of 2006delivered on the 27th February 2008. A copy of the said judgment has not been furnished to this court. It is submitted that the said judgment cannot be executed and or enforced as it excludes the second and third Defendants, now the second and third Respondents. The said second and third respondents have not been served with this application to be able to respond to the issues raised in the application.
2. I have looked at the proposed Memorandum of Appeal. The second and third respondents in my considered opinion are necessary parties to the application.
I have also considered earlier proceedings in respect of the application. The applicant was directed by the court to serve the application to the respondents on the 16th November 2011. That was obviously not done as no affidavit of service or evidence of such service is evident from the court records.
3. I find that the application termed as ex-parte by the applicant's Advocate Ms.Ndung'u cannot be urged without the participation of the Respondents. The court would be doing and perpetuating an injustice towards the respondents were it to proceed to determine the merits of the application in the absence of the respondents.
For those reasons, the court directs that the applicant do serve the application upon the respondents after which a fresh hearing date may be taken at the registry. Costs of the application shall be costs in the cause.
Date, signed and delivered in open court this 28th day of April 2016.
JANET MULWA
JUDGE