[1995] KECA 112 (KLR)
The Court of Appeal held that the judgment of the High Court did not conclusively determine the rights of the parties and therefore did not amount to a decree within the meaning of section 2 of the Civil Procedure Act. As such, it only gave rise to an order. Under section 75(2) of the Civil Procedure Act, no appeal...
Source-derived case information.
- Citation
- [1995] KECA 112 (KLR)
- Parties
- Appellant: Cornelius K. Birgen; Respondent: Kiprono A. Masai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 92 of 1989
- Procedural Posture
- Civil Appeal / Ruling on Jurisdiction and Appealability
- Outcome
- appeal struck out for want of jurisdiction
- Legal Topics
- Jurisdiction of Court, Appealability of Orders, Civil Procedure Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cornelius K. Birgen
Appellant
Kiprono A. Masai
Respondent
Procedural Posture
Civil Appeal / Ruling on Jurisdiction and Appealability
Legal Issues
- 1 Whether the High Court had jurisdiction to entertain the appeal before it.
- 2 Whether the judgment of the High Court gave rise to a decree or merely an order.
- 3 Whether an appeal lies to the Court of Appeal from such an order under section 75(2) of the Civil Procedure Act.
Ratio Decidendi
The Court of Appeal held that the judgment of the High Court did not conclusively determine the rights of the parties and therefore did not amount to a decree within the meaning of section 2 of the Civil Procedure Act. As such, it only gave rise to an order. Under section 75(2) of the Civil Procedure Act, no appeal lies from an order made in appeal by the superior court. Consequently, the Court of Appeal lacked jurisdiction to entertain the appeal, and the appeal was struck out with costs to the respondent.
Court Disposition
appeal struck out for want of jurisdiction
Orders
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
3 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, AKIWUMI & LAKHA, JJ.A.) CIVIL APPEAL NO. 92 OF 1989 BETWEEN CORNELIUS K. BIRGEN ....................................APPELLANT AND KIPRONO A. MASAI .......................................RESPONDENT (Appeal from a Judgment and Decree of the High Court of Kenya at Nairobi (Lady Justice Effie Awuor) dated 13th June, 1988 in H.C.C.C. NO. 402 OF 1985) ************ RULING OF THE COURT
The judgment appealed against decided that the superior court had no jurisdiction to entertain the appeal filed before it. It did not in any way seek conclusively to determine the rights of the parties and did not give rise to a decree within the meaning of s.2. of the Civil Procedure Act. At the best it gave rise to an order. But no appeal lies under s.75 (2) of the Civil Procedure Act from an order in appeal by the superior court.
Accordingly no appeal lies and this appeal is struck out with costs to the Respondent. Dated and delivered at Nairobi this 5th day of October, 1995. J. E. GICHERU JUDGE OF APPEAL A. M. AKIWUMI JUDGE OF APPEAL A. A. LAKHA JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR.