[2023] KECA 791 (KLR)
The court found that the respondents were not properly served with the hearing notice and directions, as only the applicant's submissions were served. Proceeding without giving the respondents a fair chance to respond would be unjust and contrary to the principles of natural justice. Therefore, the court directed...
Source-derived case information.
- Citation
- [2023] KECA 791 (KLR)
- Parties
- Applicant: Godfrey Kagia Okova; Respondent: Hellen Naututu Omoka; Respondent: Florence Liavali Okova; Respondent: Peter Okova Stevens
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E133 of 2022
- Procedural Posture
- Civil Application / Directions
- Outcome
- Directions issued for fresh service and opportunity to respond.
- Judges
- F Tuiyott
- Legal Topics
- Extension of Time, Service of Process, Written Submissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Kagia Okova
Applicant
Hellen Naututu Omoka
Respondent
Florence Liavali Okova
Respondent
Peter Okova Stevens
Respondent
Procedural Posture
Civil Application / Directions
Legal Issues
- 1 Whether the respondents were properly served with the hearing notice and directions of the court.
- 2 Whether it is fair to proceed with the application in the absence of a response from the respondents.
Ratio Decidendi
The court found that the respondents were not properly served with the hearing notice and directions, as only the applicant's submissions were served. Proceeding without giving the respondents a fair chance to respond would be unjust and contrary to the principles of natural justice. Therefore, the court directed that fresh directions be issued and properly served on the respondents, granting them five days to file a replying affidavit and submissions before the matter is placed before the judge for ruling preparation.
Court Disposition
Directions issued for fresh service and opportunity to respond.
Orders
- The Deputy Registrar shall issue fresh directions to be served upon counsel for the respondents.
- Respondents to file a replying affidavit, if any, and submissions in response within five days of service of the directions.
Full Case Text
Judgment text and source record
26 paragraphs
Okova v Omoka & 2 others (Civil Application E133 of 2022) [2023] KECA 791 (KLR) (23 June 2023) (Directions)
Neutral citation: [2023] KECA 791 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application E133 of 2022
F Tuiyott, JA
June 23, 2023
Between
Godfrey Kagia Okova
Applicant
and
Hellen Naututu Omoka
1st Respondent
Florence Liavali Okova
2nd Respondent
Peter Okova Stevens
3rd Respondent
(Being an Application for extension of time to file and serve notice of appeal out of time from the Ruling of the High Court of Kenya at Kakamega (W. Musyoka, J) Dated 13th May, 2022 in H.C. Succession Cause No. 163 of 2015 Succession Cause 163 of 2015 )
Directions
1. To be disposed of by way of written submission is the application dated November 14, 2022.
2. To enable the Court proceed on March 9, 2023, the Deputy Registrar of this Court directed counsel for applicant to serve the respondent with a hearing notice and Directions of the Court that the respondents file submissions in response within 5 days of the Notice and Directions, being February 22, 2023.
3. At the time this matter was placed before me for preparation of ruling, the respondents had neither filed any replying affidavit or submissions and I can see why.
4. The affidavit of service of Washington Athung’a, counsel for the applicant, sworn on March 2, 2023 is evidence that the only document served on counsel for the respondent is the applicant’s submissions. The Notice containing the hearing date and Directions of the Court appear not to have been served.
5. In the circumstances it would not be fair to proceed without giving the respondents a fair chance to respond to the application. For this reason, I direct that the Deputy Registrar issues fresh Directions to be served upon counsel for the respondents to, within five (5) days of the Directions, file a replying affidavit, if any, and submissions in response. At the end of that period the file be placed before me for preparation of the Ruling.
6. Those are the orders of Court.
DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JUNE, 2023. F. TUIYOTT………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SIGNEDDEPUTY REGISTRAR.