[2015] KECA 30 (KLR)
The court found that although the 2nd Appellant entered appearance and filed a defence in the subordinate court, he ceased participation after his insurance company went into liquidation and his advocate withdrew. The 2nd Appellant did not participate in the trial court or the High Court appeal. Given these...
Source-derived case information.
- Citation
- [2015] KECA 30 (KLR)
- Parties
- Applicant: Ruth Achieng Onditi; Applicant: Joshua Odero Wagunda; Respondent: Jamal Ramadhan Yusuf; Respondent: Carpentocraft Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Application 48 of 2011
- Procedural Posture
- Civil Application / Ruling on Application for Directions Regarding Service of Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Service of Process, Appeals, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Achieng Onditi
Applicant
Joshua Odero Wagunda
Applicant
Jamal Ramadhan Yusuf
Respondent
Carpentocraft Company Limited
Respondent
Procedural Posture
Civil Application / Ruling on Application for Directions Regarding Service of Notice and Record of Appeal
Legal Issues
- 1 Whether the 2nd Appellant, who did not participate in the trial or High Court proceedings, should be served with the notice and record of appeal.
- 2 Whether the court should grant directions dispensing with service on a party who cannot be traced and did not participate in earlier proceedings.
Ratio Decidendi
The court found that although the 2nd Appellant entered appearance and filed a defence in the subordinate court, he ceased participation after his insurance company went into liquidation and his advocate withdrew. The 2nd Appellant did not participate in the trial court or the High Court appeal. Given these circumstances, and in accordance with Rule 77(1) of the Court of Appeal Rules, the court exercised its discretion to allow the application and directed that the 2nd Appellant need not be served with the notice and record of appeal.
Court Disposition
application allowed
Orders
- The 2nd Appellant need not be served with the notice and record of appeal in the intended appeal.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT KISII
(CORAM: MARAGA. J. A IN CHAMBERS)
CIVIL APPLICATION NO. 48 OF 2011
BETWEEN
RUTH ACHIENG ONDITI .........................................................1st APPLICANT
JOSHUA ODERO WAGUNDA ...................................................2nd APPLICANT
AND
JAMAL RAMADHAN YUSUF……….......................................1st RESPONDENT
CARPENTOCRAFT COMPANY LIMITED..............................2nd RESPONDENT
(An application for extension of time file and serve the Notice of Appeal and Record of Appeal out of time in an intended Appeal from the Judgment of the High Court of Kenya at Kisii (Asike Makhandia, J) dated 17th day of June, 2005)
in
KISII HCCA NO. 234 OF 2005)
********************
RULING
1. The proviso to Rule 77 (1) of the Court of Appeal Rules requires any intended appellant who wishes to dispense with service upon any party who did not participate in the proceedings in the Superior Court to apply for direction to that effect within seven days of lodging the notice of appeal.
2. In her notice of motion dated 26th June 2014, the 1st Appellant seeks an order directing that the 2nd Appellant need not be served with the notice and even the record of appeal in this matter. The reasons given for seeking not to serve the 2nd Appellant are that he did not participate in both the trial court and the High Court and that he cannot be traced for service.
3. Having considered the matter I find that the application has merit. Although the 2nd Appellant entered appearance and filed defence in the subordinate court, after his insurance company went into liquidation and the advocate it had instructed to defence the 2nd Appellant in that suit withdrew from acting for him, the 2nd Appellant never took part in the proceedings before the trial Court and even in the appeal in the High Court. I therefore allow this application and direct that the 2nd Appellant need not be served in the appeal.
I make no order as to costs.
Dated and delivered at Kisii this 24th day of February, 2015
D.MARAGA
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR