[2012] KEHC 1120 (KLR)
The court found that the appellant did not obtain leave of court to appeal as required under Order 43(2) of the Civil Procedure Rules. The orders appealed from, emanating from Order 22 Rule 22, are not among those appealable as of right under Order 43(1)(k). The court rejected the appellant's argument that the...
Source-derived case information.
- Citation
- [2012] KEHC 1120 (KLR)
- Parties
- Appellant: Duncan Nyamwaya Ogendo; Respondent: Co-operative Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2011
- Procedural Posture
- Civil Appeal / Preliminary Objection Ruling
- Outcome
- appeal_struck_out
- Legal Topics
- Leave to Appeal, Jurisdiction of High Court, Order 43 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Nyamwaya Ogendo
Appellant
Co-operative Bank of Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Preliminary Objection Ruling
Legal Issues
- 1 Whether the appellant required leave of court to file the appeal under Order 43(2) of the Civil Procedure Rules.
- 2 Whether the High Court has jurisdiction to hear the appeal without such leave.
Ratio Decidendi
The court found that the appellant did not obtain leave of court to appeal as required under Order 43(2) of the Civil Procedure Rules. The orders appealed from, emanating from Order 22 Rule 22, are not among those appealable as of right under Order 43(1)(k). The court rejected the appellant's argument that the nature of the prayers exempted him from seeking leave. The court further held that the provisions of Article 159 of the Constitution and the overriding objective rules do not override the clear statutory requirement for leave. As a result, the preliminary objection was upheld, and the appeal was struck out for want of jurisdiction.
Court Disposition
appeal_struck_out
Orders
- The preliminary objection is allowed.
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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DUNCAN NYAMWAYA OGENDO..............................................APPELLANT
VERSUS
CO-OPERATIVE BANK OF KENYA LIMITED........................RESPONDENT
RULING
A preliminary objection on a point of law dated 27th January 2012 by the respondent states:-
1)The appeal is incompetent and invalid and should not be allowed to remain on record as the appellant failed to obtain leave of court to appeal under Order 43 (2) of the Civil Procedure Rules.
2)This court lacks jurisdiction to hear this appeal .
The basis of this appeal is the Ruling delivered by the lower court pursuant to the appellants Notice of Motion dated 18th March 2011. The appellant had come under the provisions of Order 22 Rule 22 and Order 51 Rule 1 and 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
The counsel for the respondent argued that the appellant after having the said application dismissed ought to have sought the leave of the court before filing this appeal. She anchored her argument on the provisions of Order 43 (2) which clearly stipulates the Orders which one can appeal as of right and when to seek leave.
Mr. Odeny for the appellant argued that although the notice of motion had quoted Order 22 Rule 22 the prayers therein and in particular prayer 4 and 5 sought setting aside of the interlocutory judgment and leave to defend the suit which provisions does not require the leave of the court to appeal.
I have perused the lower court proceedings and nowhere does the appellant sought the leave of the court to appeal. The last remark was for the applicant to file a formal application for stay.
I am inclined to allow the preliminary objection. The provision of Order 43 of the Civil Procedure Rules does not provide for Orders emanating from Order 22 Rule 22 of the Civil Procedure Rules to be circumvented. A formal application ought to be made to the lower court for leave to appeal to the high court.
Order 43 (1) (k) provides that only Order 22 Rules 25, 57, 61 (3) and (73) one can appeal as of right.
The respondent implored this court to apply the provisions of Article 159 of the current Constitution as well as the “O”2Rules . The same in my opinion does not apply in such a case. The provisions of the Law are very clear. Leave ought to be obtained. This court cannot infer and presumed that the appellant had quoted a wrong provision of the law. Parties are held by their own pleadings.
I allow the preliminary objection and struck out the appeal with costs to the respondent.
Dated, signed and delivered at Kisumu this 14th day of November 2012.
H.K. CHEMITEI JUDGE
In the presence of:
P. J. Otieno for Odeny Advocate for the Plaintiff
Ouko Advocate for the defendant
HKC/aao