[2023] KECA 786 (KLR)
The court found that it could not verify the respondent's claim of non-service on the date of hearing, but acknowledged that if the respondent had not been served, it would be deprived of a fair opportunity to respond to the application. To safeguard the respondent's right to be heard and ensure procedural fairness,...
Source-derived case information.
- Citation
- [2023] KECA 786 (KLR)
- Parties
- Applicant: Moses Kimathi Opiyo; Respondent: Teachers Service Commission
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E048 of 2022
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- Directions issued for service of application and submissions on the respondent; timelines set for response and further hearing.
- Judges
- F Tuiyott
- Legal Topics
- Extension of Time, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kimathi Opiyo
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the respondent was properly served with the application and submissions by the applicant.
- 2 Whether the respondent was afforded a fair opportunity to respond to the application for extension of time.
Ratio Decidendi
The court found that it could not verify the respondent's claim of non-service on the date of hearing, but acknowledged that if the respondent had not been served, it would be deprived of a fair opportunity to respond to the application. To safeguard the respondent's right to be heard and ensure procedural fairness, the court directed the Deputy Registrar to serve the application and submissions upon the respondent's advocate within seven days. The respondent was then granted three days from service to file a replying affidavit and submissions. The matter would thereafter be placed before the judge for preparation of a ruling. The court emphasized the importance of proper service and the...
Court Disposition
Directions issued for service of application and submissions on the respondent; timelines set for response and further hearing.
Orders
- The Deputy Registrar to serve the application and applicant’s submissions upon the respondent’s advocate within 7 days.
- The respondent to file a replying affidavit and submissions within 3 days of service.
Full Case Text
Judgment text and source record
20 paragraphs
Opiyo v Teachers Service Commission (Civil Application E048 of 2022) [2023] KECA 786 (KLR) (23 June 2023) (Order)
Neutral citation: [2023] KECA 786 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application E048 of 2022
F Tuiyott, JA
June 23, 2023
Between
Moses Kimathi Opiyo
Applicant
and
Teachers Service Commission
Respondent
(Being an Application to extend time for filing a Record of Appeal against the Ruling of the Employment and Labour Relations Court at Kisumu (Radido, J) Dated 23rd November, 2020 in KSM. ELRC No. 4 of 2019)
Order
1By Directions issued by the Court, the application dated March 23, 2022 was to be disposed of by way of written submissions without requiring appearance of the parties or their counsel. On the morning of the hearing, being June 16, 2022, Faith Kaluai, Advocate for the respondent wrote to Court stating that the respondent had not been served with the application or submissions by the applicant and was therefore unable to comply with the directions of the Court requiring it to file a replying affidavit and submissions in response.
2I was not in a position to verify the validity of this complaint, coming as it did on the date of hearing. Yet if it is true that the application and the applicant’s submissions had not been served, then the respondent would be hamstrung in responding and it can hardly be said that the respondent has been given a fair chance to respond to the application.
3. In the circumstances, I direct that the Deputy Registrar of this Court do, within 7 days of today, serve the application and the applicant’s submissions upon the advocate of the respondent who shall within 3 days of service file both a replying affidavit and submissions in response. The file shall thereafter be placed before me for preparation of a Ruling.
4. These Directions should have come earlier but for the reason stated in the Court’s notice of May 3, 2023 to parties.
DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JUNE, 2023. ...................................F TTUIYOTTJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.