[2005] KEHC 1435 (KLR)
The court found that the application for extension of time to file an appeal was incompetent because the applicant had not properly demonstrated that leave to appeal had been granted, as required under Order XLII of the Civil Procedure Rules. The applicant failed to follow the correct procedure by not applying for...
Source-derived case information.
- Citation
- [2005] KEHC 1435 (KLR)
- Parties
- Applicant: Eva Wangui Murua; Respondent: Kigerua Motors Ltd; Respondent: John Gathu Mukuria; Respondent: Tango Auctioneers; Respondent: Yunis Malik
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 536 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application struck out with costs
- Judges
- A. Ong’injo
- Legal Topics
- Leave to Appeal, Preliminary Objection, Extension of Time, Appeals From Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eva Wangui Murua
Applicant
Kigerua Motors Ltd
Respondent
John Gathu Mukuria
Respondent
Tango Auctioneers
Respondent
Yunis Malik
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for extension of time to file an appeal is competent without leave of court.
- 2 Whether the applicant had obtained leave to appeal as required under Order XLII of the Civil Procedure Rules.
- 3 Whether the applicant followed proper procedure in adducing evidence of leave granted.
Ratio Decidendi
The court found that the application for extension of time to file an appeal was incompetent because the applicant had not properly demonstrated that leave to appeal had been granted, as required under Order XLII of the Civil Procedure Rules. The applicant failed to follow the correct procedure by not applying for leave to file a further affidavit and by not annexing the order granting leave, thereby denying the respondent an opportunity to respond. As a result, the court expunged the order dated 30th December, 2004 from the record and upheld the preliminary objection, striking out the application with costs.
Court Disposition
application struck out with costs
Orders
- The application dated 27th November, 2004 is struck out with costs.
- The order dated 30th December, 2004 is expunged from the record.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Misc Civ Appli 536 of 2004
EVA WANGUI MURUA……………………………………..…………...APPLICANT
VERSUS
KIGERUA MOTORS LTD…………………………….…………..1ST RESPONDENT
JOHN GATHU MUKURIA……………………….……………….2ND RESPONDENT
TANGO AUCTIONEERS…………………………………………3RD RESPONDENT
YUNIS MALIK………………………….………………………....4TH RESPONDENT
RULING
The Ruling relates to a preliminary objection that was raised by Mr. Kimatta for the 4th Respondent. According to Mr. Kimatta, the application dated 27th November, 2004 is incompetent and bad in law since the Court is being asked to extend time for filing an appeal. Further to the above, Mr. Kimatta submitted that the intended appeal arises from a Ruling from which a right of appeal is not automatic. He was of the view that the Applicant should seek the leave of the Court before they institute any appeal. Apart from the above, he revealed that the Applicant’s earlier appeal had been struck out for being incompetent since they had not obtained leave from the Lower Court. In addition to the above, he referred the Court toOrder XLIIof the Civil Procedure Rules that sets out the appeals that lie as a matter of right.
On the other hand,Mr. Mbiyu for the Applicant has opposed the preliminary objection on the ground that leave had been granted on 17th December, 2004 by the Lower Court.
This Court has carefully perused the submissions by both Counsels. Besides the above, this Court is alive to the provisions of Order XLII which sets out the Orders where an appeal shall lie as of right. The Court hereby concurs with Mr.Kimatta that once a preliminary objection has been raised, then the Applicant should have applied for leave to file a further affidavit.
Subsequently, the Applicant should have annexed the Order that he showed the Court. That would have provided the 4th Respondent with an opportunity to rebut what has been presented to the Court. SinceMr. Mbiyu never complied with the proper laid down procedure, the Order dated 30th December, 2004 is hereby expunged from the record. In addition to the above, I hereby uphold the preliminary objection that has been raised.
The upshot is that the Application dated 27th November, 2004 is hereby struck out with costs.
Those are the Orders of the Court.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open Court in the presence of Mr. Kimatta for 4th
Respondent.
Mr. Karanja Mbugua for 3rd Respondent – Absent.
Mbiyu for Applicant – Present.
MUGA APONDI
JUDGE
28TH SEPTEMBER, 2005