[2005] KECA 46 (KLR)
The court found that since Meshack Nyakundi, the 2nd respondent, never participated in the proceedings in the superior court and the judgment was only against the 1st defendant, there was no necessity to serve him with documents relating to the appeal. The application to dispense with service was therefore allowed.
Source-derived case information.
- Citation
- [2005] KECA 46 (KLR)
- Parties
- Applicant: Small Enterprises Company Ltd; Respondent: John Odidi Omulo; Respondent: Meshack Nyakundi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 230 of 2005
- Procedural Posture
- Civil Application / Application for Leave to Dispense With Service of Documents on 2nd Respondent
- Outcome
- Application allowed.
- Legal Topics
- Service of Documents, Leave of Court, Non Participating Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Small Enterprises Company Ltd
Applicant
John Odidi Omulo
Respondent
Meshack Nyakundi
Respondent
Procedural Posture
Civil Application / Application for Leave to Dispense With Service of Documents on 2nd Respondent
Legal Issues
- 1 Whether the applicant should be granted leave to dispense with service of appeal documents on the 2nd respondent who did not participate in the proceedings and against whom judgment was not entered.
Ratio Decidendi
The court found that since Meshack Nyakundi, the 2nd respondent, never participated in the proceedings in the superior court and the judgment was only against the 1st defendant, there was no necessity to serve him with documents relating to the appeal. The application to dispense with service was therefore allowed.
Court Disposition
Application allowed.
Orders
- Leave is granted to dispense with service of documents in the appeal upon Meshack Nyakundi.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: O’KUBASU, J.A. (IN CHAMBERS) CIVIL APPLICATION NAI 230 OF 2005 (KSM.26/05) BETWEEN SMALL ENTERPRISES COMPANY LTD…………….…………… APPLICANT AND JOHN ODIDI OMULO ……………………………………..…1ST RESPONDENT MESHACK NYAKUNDI ……………..……………………....2ND RESPONDENT (An application for leave to dispense with service of all the documents relating to this appeal to the 2nd respondent in an appeal from the judgment and decree of the High Court of Kenya at Kisumu (Mr. Justice Warsame) dated 18th May, 2005 in KISUMU H.C.C.C. NO. 232 OF 1986) ****************** R U L I N G
This is an ex parte application brought underrule 76of the Court of Appeal Rules in which the applicant Small Enterprises Company Ltd is seeking leave of the Court to dispense with service of documents in the appeal upon one Meshack Nyakundi who was the 2nd defendant in the superior court. The said Meshack Nyakundi never participated in the proceedings in the superior court. The applicant herein was the 1st defendant and the judgment is against the 1st defendant only. That judgment does not affect Meshack Nyakundi.
In view of the foregoing, this application is allowed and leave is hereby granted to dispense with service of documents in the appeal upon Meshack Nyakundi. Costs shall be in the appeal.
Made at Kisumu this 29th day of November, 2005.
E. O. O’KUBASU
………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR