Case Metadata |
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| Case Number: | Civil Application 48 of 2011 |
|---|---|
| Parties: | Ruth Achieng Onditi & Joshua Odero Wagunda v Jamal Ramadhan Yusuf & Carpentocraft Company Limited |
| Date Delivered: | 24 Feb 2015 |
| Case Class: | Civil |
| Court: | Court of Appeal at Kisii |
| Case Action: | Ruling |
| Judge(s): | David Kenani Maraga |
| Citation: | Ruth Achieng Onditi & another v Jamal Ramadhan Yusuf & another [2015] eKLR |
| Case History: | (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) |
| Court Division: | Civil |
| County: | Kisii |
| History Docket No: | HCCA NO. 234 OF 2005 |
| History Judges: | Milton Stephen Asike-Makhandia |
| History County: | Kisii |
| Case Outcome: | Application allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
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
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