[2001] KECA 295 (KLR)
The court exercised its discretion under rule 76(1) of the Court of Appeal Rules, finding that since the respondents neither appeared nor filed a defence in the High Court proceedings, it was appropriate to grant the applicant leave to dispense with service of the Notice of Appeal and all other court processes...
Source-derived case information.
- Citation
- [2001] KECA 295 (KLR)
- Parties
- Applicant: Philemon K. Rotich; Respondent: John Kihara Karanja; Respondent: Samuel Momanyi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 210 of 2001
- Procedural Posture
- Civil Application / Application for Leave to Dispense With Service of Notice of Appeal and Other Court Processes
- Outcome
- Application allowed. Leave granted to dispense with service of Notice of Appeal and all other court processes. Costs of the motion to be in the intended appeal.
- Legal Topics
- Dispensation of Service, Notice of Appeal, Ex Parte Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philemon K. Rotich
Applicant
John Kihara Karanja
Respondent
Samuel Momanyi
Respondent
Procedural Posture
Civil Application / Application for Leave to Dispense With Service of Notice of Appeal and Other Court Processes
Legal Issues
- 1 Whether the applicant should be granted leave to dispense with service of the Notice of Appeal and other court processes on the respondents.
- 2 Whether the respondents' non-participation in the lower court proceedings justifies dispensing with service.
Ratio Decidendi
The court exercised its discretion under rule 76(1) of the Court of Appeal Rules, finding that since the respondents neither appeared nor filed a defence in the High Court proceedings, it was appropriate to grant the applicant leave to dispense with service of the Notice of Appeal and all other court processes relating to the intended appeal. The absence of participation by the respondents in the lower court justified the dispensation of service, as further service would serve no practical purpose.
Court Disposition
Application allowed. Leave granted to dispense with service of Notice of Appeal and all other court processes. Costs of the motion to be in the intended appeal.
Orders
- Leave is granted to the applicant to dispense with service of the Notice of Appeal and all other court processes relating to the intended appeal.
- The costs of this motion shall be in the intended appeal.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: BOSIRE, JA (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 210 OF 2001 (UR.110/2001) BETWEEN
PHILEMON K. ROTICH .....................................APPLICANT
AND
1. JOHN KIHARA KARANJA) 2. SAMUEL MOMANYI ).............................RESPONDENTS(An application for leave that service of Notice of Appeal and any other court process need not be effected on the Respondents)(Judgment and decree of Hon. Lady Justice Ang'awa dated 13th June, 2001
in
H.C.C.C. No.1229 of 1999)
R U L I N G
This is an application under rule 76(1) of the Court of Appeal Rules. The applicant was the plaintiff in Nairobi High Court Civil Case No.1229 of 1999. His suit proceeded ex parte as the respondent as defendant neither appeared nor filed defence. His suit was however dismissed by Ang'awa J. The applicant has filed a Notice of Appeal and in the present application he seeks dispensation of service of the Notice of Appeal, and other court processes contending that since the defendant/ respondent did not participate in the proceedings in the court below, it is not necessary to serve him.
I have considered the application. The court has power under rule 76(1), aforesaid to dispense with service of a Notice of Appeal and other processes. In exercise of that power, I allow the application and grant the applicant leave to dispense with the service not only of the Notice of Appeal but also all other court processes relating to the hearing of his intended appeal.
The costs of this motion shall be in the intended appeal. Dated and delivered at Nairobi this 9th day of July 2001.
S.E.O. BOSIRE ............................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR