Attorney General v Kamlesh Mansukhlal Pattni & 2 others

Court of Appeal, at Nairobi July 18, 2003

Owuor JA

Civil Application No NAI 321 of 1999

(Application for extension of time to file Notice of appeal and record of

appeal out of time in an intended appeal from the ruling of the High Court

of Kenya at Nairobi, Aluoch J dated 11th February, 1999 in H.C

Miscellaneous Application No 1296 of 1998)

Civil Practice and Procedure - service – service of notice of appeal to a party outside Kenya – where service cannot be effected due to impediments–– whether the service can be dispensed with.

Civil Practice and Procedure - appeal - Court of Appeal - jurisdiction – jurisdiction of a single judge – where orders are issued by a single judge – whether another single judge has jurisdiction to vacate or vary the earlier order – rule 54(1) of the Court of Appeal Rules.

The applicant had initially been denied leave to amend his notice of appeal on the ground that it was a primary document and could not be amended.

As a result the applicant sought to have time extended to file and serve the Notice of Appeal.

The application came before Gicheru JA but the 3rd respondent, who was in Dubai, had not been served. The judge ordered that service should first be effected. The applicant made an attempt to effect service but did not succeed. When the matter came up for hearing again, before Akiwumi JA the judge agreed with Gicheru JA and ordered that service be effected on the 3rd respondent.

The applicant subsequently filed the present application seeking orders that the service should be dispensed with and further orders that leave be granted to withdraw proceedings against the 3rd respondent.

Held:

1. The Attorney-General in this case did not swear an affidavit as to the efforts made and impediments encountered in any attempt to effect service on the 3rd respondent.

2. Since the Attorney General had not exercised his power under section 26 of the Constitution of Kenya, the 3rd respondent was still a party to the case.

3. Orders made earlier with respect to how service was to be effected on the 3rd respondent were still subsisting on record and had not been varied or discharged. The applicant has not complied with those orders.

4. The applicant in this case did not comply with nor did he move the court under rule 54(1) of the Court of Appeal Rules to have orders requiring service to be effected to be varied or discharged.

5. As a single judge, the court lacked jurisdiction under rule 54 (1) of the Court of Appeal Rules to have the orders requiring service to be effected to be vacated or varied in any manner.

Notice of motion dismissed.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 17, 54(1)(b)

2. Appellate Jurisdiction Act (cap 9) section 3

3. Constitution of Kenya section 26

Advocates

M Gathenji for the Applicant

W Kilonzo for the 1st and 2nd Respondent