[2003] KECA 85 (KLR)
The court found that it would be unfair to proceed with the hearing of the application on the question of urgency because the 2nd respondent had not been personally served with the hearing notice. The applicants, despite being aware that the advocate previously on record for the 2nd respondent had ceased to act,...
Source-derived case information.
- Citation
- [2003] KECA 85 (KLR)
- Parties
- Applicant: Naftali Ruthi Kinyua t/a Citadel Freighters; Applicant: Peter Mwangi Mbuthia; Respondent: Kenya Commercial Bank Ltd; Respondent: Daniel Nyangoya Auma
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 2 of 2003
- Procedural Posture
- Civil Application / Application for Extension of Time And/or Validation of Record of Appeal Filing
- Outcome
- Application stood over generally due to improper service; costs awarded to 1st respondent.
- Legal Topics
- Service of Process, Extension of Time, Appeal Record Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naftali Ruthi Kinyua t/a Citadel Freighters
Applicant
Peter Mwangi Mbuthia
Applicant
Kenya Commercial Bank Ltd
Respondent
Daniel Nyangoya Auma
Respondent
Procedural Posture
Civil Application / Application for Extension of Time And/or Validation of Record of Appeal Filing
Legal Issues
- 1 Whether the application could proceed in the absence of personal service of the hearing notice on the 2nd respondent.
- 2 Whether service on an advocate who had ceased to act for the 2nd respondent was valid.
Ratio Decidendi
The court found that it would be unfair to proceed with the hearing of the application on the question of urgency because the 2nd respondent had not been personally served with the hearing notice. The applicants, despite being aware that the advocate previously on record for the 2nd respondent had ceased to act, served the motion on that advocate rather than on the 2nd respondent directly. As a result, the court removed the matter from the hearing list and stood it over generally, ordering the applicants to pay the 1st respondent's costs for the day.
Court Disposition
Application stood over generally due to improper service; costs awarded to 1st respondent.
Orders
- The matter is taken out of the hearing list for today and stood over generally.
- The applicants to pay the 1st respondent today's costs of Kshs.1,000.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: BOSIRE, JA (IN CHAMBERS)
CIVIL APPLICATION NO. NAI.2 OF 2003
BETWEEN
NAFTALI RUTHI KINYUA T/A CITADEL FREIGHTERS ......... IST APPLICANT
PETER MWANGI MBUTHIA .................................................. 2ND APPLICANT
AND
KENYA COMMERCIAL BANK LTD .................................... IST RESPONDENT
DANIEL NYANGOYA AUMA ............................................. 2ND RESPONDENT
(Application for an order that the record of civil appeal
No.333 of 2002 already filed and served be accepted
and be deemed to have been properly filed and served
or for extension of time to file and serve record of
appeal from the ruling of the High Court of Kenya at
Nairobi Milimani Commercial Court (Justice Khamoni
J.) dated 21st May, 2001
in
H.C.C.C.NO.653 of 2001
**************
O R D E R
In view of the fact that the 2nd respondent was not personally served with a hearing notice for today's hearing and considering that counsel for the applicants while fully aware that Messrs. Gitau Kariuki, advocate had ceased to act for the 2nd respondent, served the said advocate with this motion, it will not be fair to proceed with the hearing of this matter on the question of urgency before the 2nd respondent is served. Accordingly this matter is taken out of the hearing list for today and is stood over generally. The applicants to pay the Ist respondent today's costs of Kshs.1,000/=
Made at Nairobi this 12th day of February, 2003.
S.E.O. BOSIRE ........................ JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR