[2010] KEHC 3269 (KLR)
The court found that the respondent's application to dismiss the appeal for want of prosecution was served on Cherono & Company Advocates, who were not the advocates on record for the appellant at the material time. The proper advocates on record were O.P. Ngoge & Associates, as evidenced by the notice of change of...
Source-derived case information.
- Citation
- [2010] KEHC 3269 (KLR)
- Parties
- Appellant: Rodah Kobilo Chebon; Respondent: Susan Aboke Onsomu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 135 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application stood over generally for proper service; no determination on merits.
- Judges
- DK Musinga
- Legal Topics
- Service of Process, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rodah Kobilo Chebon
Appellant
Susan Aboke Onsomu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the respondent's application to dismiss the appeal for want of prosecution was properly served on the appellant's advocates.
- 2 Whether the application could be determined when service was effected on the wrong firm of advocates.
Ratio Decidendi
The court found that the respondent's application to dismiss the appeal for want of prosecution was served on Cherono & Company Advocates, who were not the advocates on record for the appellant at the material time. The proper advocates on record were O.P. Ngoge & Associates, as evidenced by the notice of change of advocates filed on 21st December, 2004. Since service was not effected on the correct firm, the application could not be considered as properly served, and it would be unjust to proceed in the absence of the appellant's advocates. The court therefore stood over the application generally and directed that a hearing date be fixed after proper service.
Court Disposition
Application stood over generally for proper service; no determination on merits.
Orders
- The respondent's application dated 24/1/2005 is stood over generally.
- The respondent is directed to fix a hearing date in the registry after effecting proper service on the appellant's advocates on record.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL 135 OF 2003
RODAH KOBILO CHEBON ……………………………...…….…….. APPELLANT
VERSUS
SUSAN ABOKE ONSOMU …………………...……………..……… RESPONDENT
RULING
On 6/7/2005 Mr. Karanja argued the respondent’s application dated 24/1/2005. According to an affidavit of service filed by the respondent’s counsel on 20th April, 2005, the said application was on the 11th April, 2005 served upon M/s Cherono & Company Advocates for and on behalf of the appellant. The said advocates did not file any documents in opposition to the said application and neither did they attend court. The said application was therefore unopposed. The application was therefore unopposed. The application sought dismissal of the appeal herein for want of prosecution or in the alternative, striking out of the same as being an abuse of the process of the court.
The ruling of the said application was scheduled to be delivered on 28/7/2005. However, as I went through the file in the course of preparing the ruling, I realized that the appellant’s advocates who were on record were O.P. Ngoge & Associates Advocates of P.O. Box 3430- 00200 Nairobi not Cherono & Company who had been served with the said application. The record of appeal that was filed on 14/4/2005 was drawn and filed by O.P. Ngoge & Associates. This firm of Advocates filed a notice of Change of Advocates on 21st December, 2004 and replaced M/s Kamonjo Kiburi & Company Advocates who were previously on record for the appellant. Cherono & Company Advocates seems to have filed Grounds of Opposition and list of authorities to the respondents earlier application dated 10th June, 2003 but which was withdrawn on 27th July, 2004. The file does not show whether Cherono & Company Advocates had initially filed notice of appointment of Advocates because M/s Kamonjo Kiburi & Co. Advocates were the ones who were on record for the appellant until M/s O.P. Ngoge & Associates filed the notice of change of Advocates as aforesaid.
In the circumstances, the respondent’s application dated 24/1/2005 was served upon M/s Cherono & Company Advocates by mistake and should have been served upon M/s O.P. Ngoge & Associates. I will therefore stand it over generally and direct that a hearing date for it be fixed in the registry.
DATED, SIGNED & DELIVERED at Nakuru this 28th day of July, 2005.
D. MUSINGA
JUDGE
28/7/2005