Ruth Achieng Onditi & Joshua Odero Wagunda v Jamal Ramadhan Yusuf & Carpentocraft Company Limited [2015] KECA 30 (KLR)

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