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Court of AppealPartially AllowedKisumu Civil Appeal No. 6 of 2005

Kakamega County Council v Chairman,Tiriki East Land Disputes Tribunal & 3 others [2005] KECA 41 (KLR)

Court of Appeal of Kenya
24 November 2005
EGE. M. Githinji
342 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an unopposed time extension and excused serving appeal papers on a party who never took part in the case.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Kisumu delivered by Githinji, JA, on 24 November 2005 in Kisumu Civil Appeal No. 6 of 2005, an appeal arising from judicial review proceedings in the superior court. The applicant sought three orders under rules 4, 44 and 76 of the Court of Appeal Rules: extension of time for service of the record of appeal; leave to amend the record of appeal; and dispensation with service of the notice of appeal and record of appeal on the 1st respondent. Counsel for the applicant withdrew the amendment prayer at the hearing, leaving the first and third prayers for determination. Counsel for the 2nd, 3rd and 4th respondents did not oppose the extension application, though he indicated he did not appear for the 1st respondent and his clients preferred that the 1st respondent be served. The court allowed the unopposed extension and deemed the record served on 25 February 2005 to have been served within time. On the dispensation prayer, the court was satisfied from the supporting affidavit that the 1st respondent, though served with the judicial review application below, never participated in those proceedings, and dispensed with service on the 1st respondent. Costs of the application were made costs in the appeal. The ruling is procedural and interlocutory; it sets no substantive precedent and does not disturb any decision below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether time for service of the record of appeal should be extended
  2. 2.Whether service of the notice of appeal and record of appeal on the 1st respondent should be dispensed with

Key legal issues

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01

Extension of time for service of the record of appeal

Holding

Granted where unopposed; service already effected on the respondents' advocates was deemed within time

Reasoning

The court noted that the extension application was unopposed by the 2nd, 3rd and 4th respondents' counsel, who expressly did not oppose it. In the exercise of its discretion under the Court of Appeal Rules, the court allowed the extension and validated the service effected on 25th February 2005 as service within time.

p. 2
02

Dispensation of service on the 1st respondent

Holding

Dispensed with on the basis of affidavit evidence that the 1st respondent never participated in the proceedings below despite service

Reasoning

The court was satisfied from the supporting affidavit that although the 1st respondent had been served with the judicial review application in the superior court, it never took part in those proceedings. On that basis, and notwithstanding the 2nd-4th respondents' preference that service be effected, the court exercised its discretion to dispense with service of the notice and record of appeal.

p. 2

Legal principles established

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  • Where an application for extension of time for service of the record of appeal is unopposed, the court may allow it and deem the record served within time
  • Service on a party who did not participate in the proceedings below may be dispensed with

Court orders

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  1. 1.Extension of time granted; the record of appeal served on the advocates for the 2nd, 3rd and 4th respondents on 25th February 2005 deemed to be served within time
  2. 2.Service of the notice of appeal and record of appeal on the 1st respondent dispensed with
  3. 3.Costs of the application to be costs in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EG
majority

Wrote the judgment

On appeal from
High Court (superior court)
Jurisdiction invoked
Rules 4, 44 and 76 of the Court of Appeal Rules (appellate jurisdiction over Kisumu Civil Appeal No. 6 of 2005)

Relief refused

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Leave to amend the record of appeal

Counsel for the applicant withdrew the prayer before the hearing

p. 1

Costs

The costs of this application shall be costs in the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I allow the application for the extension of time and order that the record of appeal already served on the advocates for 2nd, 3rd and 4th respondents on 25th February, 2005 is deemed to be served within time.
p. 2extension of time for service of record of appeal
Accordingly, I allow the third prayer in the application and order that service of the notice of appeal and the record of appeal on the 1st respondent be and is hereby dispensed with.
p. 2dispensation of service — final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kakamega County Council v Chairman,Tiriki East Land Disputes Tribunal & 3 others [2005] KECA 41 (KLR)", Case Analysis (2005). Kisumu Civil Appeal No. 6 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/41/eng@2005-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.