[2021] KEELC 1172 (KLR)
The court found that the order made on 5.5.2021 was issued under Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules, which is among the orders listed in Order 43 as appealable as of right. Therefore, the plaintiff did not require leave to appeal against the said order. As a result, the application for leave to...
Source-derived case information.
- Citation
- [2021] KEELC 1172 (KLR)
- Parties
- Plaintiff: Celina Nkirina; Defendant: Susan Nkatha; Defendant: Teresia Kaindia Thirindi; Defendant: Patrick Kamencu Robert; Defendant: Martha Wanja Gitonga; Plaintiff: Daniel Kirimi Mutua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 41 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal, Appealable Orders, Mandatory Injunctions, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celina Nkirina
Plaintiff
Susan Nkatha
Defendant
Teresia Kaindia Thirindi
Defendant
Patrick Kamencu Robert
Defendant
Martha Wanja Gitonga
Defendant
Daniel Kirimi Mutua
Plaintiff
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the order made on 5.5.2021 is appealable as of right or only with leave of the court.
- 2 Whether the plaintiff's application for leave to appeal is merited under the Civil Procedure Act and Rules.
Ratio Decidendi
The court found that the order made on 5.5.2021 was issued under Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules, which is among the orders listed in Order 43 as appealable as of right. Therefore, the plaintiff did not require leave to appeal against the said order. As a result, the application for leave to appeal was unnecessary and lacked merit. The court dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 12.5.2021 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC NO. 41 OF 2020
CELINA NKIRINA ……………….………….…………………. PLAINTIFF
VERSUS
SUSAN NKATHA ………………………………..……… 1ST DEFENDANT
TERESIA KAINDIA THIRINDI ……………….……… 2ND DEFENDANT
PATRICK KAMENCU ROBERT ……………...………. 3RD DEFENDANT
MARTHA WANJA GITONGA ………………………… 4TH DEFENDANT
DANIEL KIRIMI MUTUA ……………………………………. PLAINTIFF
VERSUS
PATRICK KAMENCU ROBERT ……………………… 1ST DEFENDANT
SUSAN NKATHA ………………………………..……… 2ND DEFENDANT
TERESIA KAINDIA THIRINDI.........................................3RD DEFENDANT
RULING
1. By an application dated 12th May 2021 the plaintiff seeks leave to appeal against an order made on 5. 5.2021. The application is premised under Section 75 of the Civil Procedure Rules, Order 43 rule 1 (2) and 3 of the Civil Procedure Rules.
2. It is submitted the order made on 5. 5.2021 is not appealable as a matter of right; that the applicant did not orally seek leave at the time the ruling or order was made due to Covid protocols; that the proceedings were not conducive or convenient for the plaintiff to make an oral application and that it is not necessary to have a supporting affidavit to explain the law hence the application is not supported by any affidavit. Lastly the applicant insists the application is made within prescribed statutory timelines and there has been no delay to explain away.
3. Section 75 (1) of the Civil Procedure Act provides for orders against which an appeal would lie as of right and or with leave of the court.
4. Order 43 of the Civil Procedure Rules on the other hand gives a long list from which an appeal lies as of right. These includes Orders 1, 2, 3, 7, 8, 10, 15, 19, 22, 23, 24, 25, 26, 28, 34, 35, 40, 42, 50, 52, 53. Under Order 43 (2)it is provided that an appeal shall lie with the leave of court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are listed, leave to appeal must be sought and obtained before such an appeal can be lodged.
5. In the instant case the plaintiff brought a notice of motion dated 10th September 2020 under Sections 1A, 3A of the Civil Procedure Rulesand Order 40 Rules 1, 2 and 10 of the Civil Procedure Rulesseeking for a mandatory injunction. The court considered the said application and rendered its ruling on 5. 5.2021 in which it dismissed it since there was a regular order or decree from a court of concurrent jurisdiction – the High Court sitting in a succession cause at Meru.
6. The orders made on 5. 5.2021 were therefore made under Order 40 Rules 1, 2 and 10 of Civil Procedures. Appeals against the order thereof are appealable as a matter of right. Consequently I find the application dated 12. 5.2021 without merit. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27TH DAY OF OCTOBER, 2021
In presence of:
Kimani for S.M. Kimani for plaintiff
Mbubuya holding brief for B.G. Kariuki for defendants
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE