Mboss & another v Opiyo (Sued in his capacity as the administrator of the Estate of Stephen Opiyo Onyango (Deceased) & 2 others [2023] KECA 1305 (KLR)

Mboss & another v Opiyo (Sued in his capacity as the administrator of the Estate of Stephen Opiyo Onyango (Deceased) & 2 others (Civil Application E047 of 2023) [2023] KECA 1305 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KECA 1305 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E047 of 2023

M Ngugi, JA

October 27, 2023

Between

Joseph Mboss

1st Applicant

Elizabeth Mboss

2nd Applicant

and

Jacob Owino Opiyo (Sued In His Capacity As The Administrator Of The Estate Of Stephen Opiyo Onyango (Deceased)

1st Respondent

Jacob Owino Opiyo

2nd Respondent

Francis Amina

3rd Respondent

(Being an application to dispense with service of the Notice of Appeal upon the Respondents in the intended Appeal from the judgment of the Environment and Land Court of Kenya at Siaya (A.Y. Koross J.) dated 23rd March 2023 in ELC No. E024 of 2021 Environment & Land Case 24 of 2021 )

Ruling

1. The application dated April 13, 2023 is brought under Rules 77 of the Court of Appeal Rules 2010 and seeks orders that:i.This Honourable Court be pleased to dispense with service of the Notice of Appeal dated April 4, 2023 lodged at Siaya Environment and Land Court Appl No E024 of 2021(OS) (formerly Kisumu ELC Appl No 18 of 2021(OS) upon the Respondents herein.ii.The costs of this application be provided for.

2. The application is supported by an affidavit sworn by the 1st applicant, Joseph Mboss. It is based on the grounds that the respondents did not take part in the proceedings before the trial court, did not give any address of service before the trial court, and the applicants are not aware of their whereabouts for purposes of effecting service.

3. In his affidavit in support of the application, the 1st applicant avers that he instituted Siaya ELC Application No E024 of 2021 (OS) (formerly Kisumu ELC Appl No 18 of 2021 claiming to be in adverse possession of land parcel number Siaya/Ambira/1783. The suit was however, dismissed on March 23, 2023. He was aggrieved by the dismissal and he filed a notice of appeal dated April 4, 2023 which ought to be served within 7 days of filing. However, he is unable to serve the notice of appeal upon the respondents as they never participated in the suit before the trial court despite being served by way of substituted service. He further avers that the respondents neither reside on the suit property nor in the neighbourhood, and their whereabouts is unknown.

4. In submissions dated 8th May 2023, the applicants contend that upon instituting the suit before the trial court, service was effected through substituted service, but the respondents did not participate in the proceedings. The trial court, however, dismissed the applicants’ suit prompting the applicant to file a notice of appeal and the present application.

5. As the applicants submit, Rule 77 of this Court’s Rules 2010, which was in the same terms as Rule 79 of the 2022 Rules, gives the Court discretion to give directions regarding service of a notice of appeal upon a party who did not participate in the proceedings before the trial court. The Rule provides as follows:79. (1)An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly affected by the appeal:Provided that the Court may, on application which may be made ex parte, within seven days after the lodging of the notice of appeal, direct that service need not be effected on any person who did not take part in the proceedings in the superior court.

6. I note from the decision of the trial court dated March 23, 2023 that the suit proceeded as an undefended claim, despite service having been effected by substituted service. The evidence of such service was placed before the court in the form of an advertisement in the Standard Newspaper of Thursday, December 22, 2022.

7. In the circumstances, I am satisfied that the application is merited and accords with the requirements of the proviso to Rule 79(1) of the Court of Appeal Rules 2022. I therefore allow the application and direct that service need not be effected on the respondents as they did not participate in the proceedings before the trial court despite service upon them by substituted service.

DATED AND DELIVERED AT KISUMU THIS 27TH DAY OF OCTOBER, 2023MUMBI NGUGI..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR