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Court of AppealOtherCivil Appeal (Application) E334 of 2022· [2022] KECA 1100 (KLR)
Kithinji v Director of Public Prosecutions & another
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·~2 min to read original · ~4 min briefThe bottom line
#The Court of Appeal refused to excuse an appellant from serving appeal documents, ordering service on both respondents within seven days.
What this practically means
#Executive summary
#This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi by Laibuta, JA, on a Notice of Motion dated August 5, 2022 by James Nthuku Kithinji, the applicant in an intended appeal against the Director of Public Prosecutions and the Chief Magistrates Court, Kibera Law Courts. The applicant sought extension of time under Rules 4 and 92 of the Court of Appeal Rules, 2022 to serve his Memorandum and Record of Appeal on the 1st respondent out of time, and leave not to serve the 2nd respondent. He argued that although he filed the notice of appeal and the Memorandum and Record within the prescribed periods, he had not served them within the 7 days required by Rule 92(1) because none of the respondents had complied with Rule 81(1), which obliges a respondent served with a notice of appeal to lodge and serve notice of a full and sufficient address for service within 14 days. The court noted that the applicant offered no explanation for not serving both respondents and did not claim the 2nd respondent's address was unknown. The judge directed the applicant to serve the Memorandum and Record of Appeal on both respondents within 7 days, effectively declining the extension and the leave sought, and ordered the applicant to bear the costs of the application in any event. The ruling is procedural and establishes no substantive precedent beyond the expectation that a party justify relief from service obligations.
Key legal issues
#01
Extension of time to serve the Memorandum and Record of Appeal under Rule 92
Holding
The court declined to excuse service and instead directed service on both respondents within 7 days.
Reasoning
The applicant argued that respondents had not complied with Rule 81(1) by lodging a notice of address for service, so he could not serve them. The judge, having considered the Motion, affidavit, Rules and submissions, did not accept that this justified non-service or non-service of the 2nd respondent, and ordered service within 7 days.
p. 2
Legal principles established
#- A party seeking relief from service obligations must justify the relief sought; unexplained non-service will not be excused and the court will direct service on both respondents.
Court orders
#- 1.The applicant to serve the Memorandum and Record of Appeal on the 1st and 2nd respondents within 7 days
- 2.Costs of the application to be borne by the applicant in any event
- Jurisdiction invoked
- Rules 4, 17(1), 42, 79, 90 and 92 of the Court of Appeal Rules, 2010/2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithinji v Director of Public Prosecutions & another", Case Analysis (2022). Civil Appeal (Application) E334 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1100/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.