[2023] KEHC 22862 (KLR)
The High Court held that the lower court had no jurisdiction to grant leave to file an appeal out of time as contemplated by Section 79G of the Civil Procedure Act. Since the appellant obtained leave from the lower court rather than the High Court, the appeal was filed without proper authorization and was therefore...
Source-derived case information.
- Citation
- [2023] KEHC 22862 (KLR)
- Parties
- Appellant: Be Energy Limited; Respondent: Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E075 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- RE Aburili
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Jurisdiction of Lower Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Be Energy Limited
Appellant
Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the lower court had jurisdiction to grant leave to file an appeal out of time under Section 79G of the Civil Procedure Act.
- 2 Whether the appeal filed pursuant to leave granted by the lower court is competent.
Ratio Decidendi
The High Court held that the lower court had no jurisdiction to grant leave to file an appeal out of time as contemplated by Section 79G of the Civil Procedure Act. Since the appellant obtained leave from the lower court rather than the High Court, the appeal was filed without proper authorization and was therefore incompetent. The court struck out the appeal for want of jurisdiction, emphasizing that statutory provisions regarding appellate procedure must be strictly complied with and that jurisdiction cannot be conferred by consent or error.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out for want of jurisdiction.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Be Energy Limited v Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises (Civil Appeal E075 of 2023) [2023] KEHC 22862 (KLR) (27 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22862 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E075 of 2023
RE Aburili, J
September 27, 2023
Between
Be Energy Limited
Appellant
and
Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises
Respondent
(Being an Appeal from the Judgment of the Chief Magistrate’s Court at Kisumu delivered by Hon. J. Wambilyanga (SPM) on 18th July 2022 in Kisumu CMCC No. E022 of 2021)
Ruling
1. This appeal arises from the Judgment of the lower court dismissing the suit for the Plaintiff/Appellant herein after a hearing.
2. An appeal lies to this court within 30 days. The Judgment was delivered on July 18, 2022 and the leave to appeal was sought and obtained from the lower court May 15, 2023.
3. Obviously, the lower court has no jurisdiction or power to grant leave to extent the time for filing of an appeal out of time as contemplated in Section 79G of the Civil Procedure Act, the proviso thereof.
4. In the premises, I find this appeal incompetent and the same is hereby struck out with no orders as to costs.
5. This file is hereby closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF SEPTEMBER, 2023R.E. ABURILIJUDGE