ELIJAH C. MWANGI v PAUSTINE AKUMU SEREJE [1996] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed without the mandatory leave required to challenge stay-of-execution orders, but signalled that serving court summons on a defendant's driver is invalid service.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal could proceed without leave
The appeal was struck out because leave to appeal was mandatory and had not been obtained
Order 42 rule 1(1)(z) of the Civil Procedure Rules lists the orders appealable as of right, and Rule 4 of Order 41 is not among them. An order under Order 41 rule 4 (stay of execution pending appeal) is therefore appealable only with leave. Since none had been obtained, the Court of Appeal had no jurisdiction to entertain the appeal and had no alternative but to strike it out.
Validity of service of summons on the appellant's driver
Service on a driver is invalid; default judgment entered on such service contravenes Order 5 rule 9 of the Civil Procedure Rules
The court expressed misgiving about default judgment being entered where summons was allegedly served on the applicant's driver. Following Waweru v Kirano, where service on a defendant's wife without enquiry as to his whereabouts was held bad, the court held that a driver is neither a family member nor an authorised agent for service under Order 5 rule 12. This was an obiter misgiving expressed before parting with the appeal.
Legal principles established
#- An appeal to the Court of Appeal against an order made under Order 41 rule 4 of the Civil Procedure Rules lies only with leave; there is no automatic right of appeal under Order 42
- Service of summons on a defendant's driver is bad service; a driver is not a member of the defendant's family nor an agent empowered to accept service
Court orders
#- 1.The appeal was struck out
- 2.No order as to costs, each party to bear their own costs
- 3.Liberty for the applicant to prosecute the appeal in the superior court
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 57 of 1995
- Jurisdiction invoked
- No leave to appeal having been obtained; appeal lay only with leave under Order 41 rule 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Duncan Mindo v Respondents (Notice of Motion dated 23/09/2019)[2020] KEHC 313 (KLR)28 May 2020
- C Y C v K S Y[2015] KECA 931 (KLR)27 Feb 2015
Cite this brief
#Cite this brief
Caselaw, "ELIJAH C. MWANGI v PAUSTINE AKUMU SEREJE [1996] KECA 91 (KLR)", Case Analysis (1996). Civil Appeal 88 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/91/eng@1996-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.