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Court of AppealDismissedCivil Application No. 52 of 2014 (UR. 36/2014)

Jameny Mudaki Asava v Brown Oteng Asava & another [2014] KECA 172 (KLR)

Court of Appeal
30 October 2014
David Kenani MaragaD. K. MaragaFAF. AzangalalaSKS. ole Kantai
369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal dismissed a stay application simply because the applicant and his lawyer failed to show up, even though nobody opposed it.

What this practically means

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Executive summary

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This is a short procedural ruling of the Court of Appeal at Kisumu (Maraga, Azangalala and Kantai, JJ.A) dismissing an applicant's motion for stay of execution for want of attendance. The applicant, Jameny Mudaki Asava, moved by notice of motion under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking a stay of execution in Kakamega High Court Succession Cause No. 278 of 2007 pending the hearing and determination of Civil Appeal No. 23 of 2014, in which he challenged a ruling of Chitembwe, J. dated 26th February 2014. The motion was listed for hearing on 23rd October 2014. Hearing notice had been served on the applicant's advocates on 10th September 2014, as shown by the law firm's stamp and the affidavit of service of process server Joseph Kiarie. Neither the applicant nor his advocate attended. Counsel for the respondents, Miss M. Bikeyo, confirmed that nothing had been filed in opposition. The court nonetheless held that under Rule 56(1) of the Court of Appeal Rules, where an applicant and his advocate are absent and the application cannot be prosecuted, the proper course is dismissal, which it accordingly effected. Because the respondents had not opposed the application, they were not awarded costs. No merits findings were made and no binding substantive precedent on stay of execution emerges from the ruling; its utility lies in the procedural rule on non-attendance. The decision of the High Court was not reviewed on the merits.

Key legal issues

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Effect of non-attendance by an applicant at the hearing of a motion under Rule 5(2)(b)

Holding

The motion is properly dismissed under Rule 56(1) of the Court of Appeal Rules where the applicant and his advocate are absent and the application cannot be prosecuted, notwithstanding that the respondents filed nothing in opposition.

Reasoning

The court noted that the hearing notice had been duly served on the applicant's advocates on 10th September 2014, evidenced by the firm's stamp and an affidavit of service sworn by a court process server. On the hearing date neither the applicant nor counsel appeared. Counsel for the respondents confirmed nothing had been filed in opposition, but the court held that unopposed status does not save an unprosecuted application; Rule 56(1) mandates dismissal. Because there was no opposition, no costs were awarded to the respondents.

p. 2

Legal principles established

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  • Where an applicant and his advocate are absent on the hearing date and the application cannot be prosecuted, the proper course under Rule 56(1) of the Court of Appeal Rules is dismissal of the application.

Court orders

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  1. 1.The applicant's motion by notice dated under a certificate of urgency is dismissed under Rule 56(1) of the Court of Appeal Rules for want of prosecution on the hearing date
  2. 2.No costs awarded, as the respondents did not oppose the application
On appeal from
High Court of Kenya at Kakamega
Kakamega Succ. Cause No. 278 of 2007 (Ruling dated 26th February 2014)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jameny Mudaki Asava v Brown Oteng Asava & another [2014] KECA 172 (KLR)", Case Analysis (2014). Civil Application No. 52 of 2014 (UR. 36/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/172/eng@2014-10-30

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