[2012] KEHC 3790 (KLR)
The court held that the applicant's application for enlargement of time to file an appeal was incompetent because the applicant had not first sought and obtained leave to appeal from the lower court, as required under Order 43 of the Civil Procedure Rules. The order being appealed from was not one of those for which...
Source-derived case information.
- Citation
- [2012] KEHC 3790 (KLR)
- Parties
- Applicant: Geoffrey Ngatu Githethuki; Respondent: Alex Muriithi Kangangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 185 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Enlargement of Time to Appeal
- Outcome
- application struck out with costs
- Legal Topics
- Enlargement of Time, Leave to Appeal, Order 43 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Ngatu Githethuki
Applicant
Alex Muriithi Kangangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Enlargement of Time to Appeal
Legal Issues
- 1 Whether the applicant could seek enlargement of time to file an appeal without first obtaining leave from the lower court as required under Order 43 Civil Procedure Rules.
- 2 Whether the order being appealed from is one that can be appealed against as of right.
Ratio Decidendi
The court held that the applicant's application for enlargement of time to file an appeal was incompetent because the applicant had not first sought and obtained leave to appeal from the lower court, as required under Order 43 of the Civil Procedure Rules. The order being appealed from was not one of those for which an appeal lies as of right. The proper procedure was for the applicant to seek leave from the lower court before approaching the High Court for enlargement of time. As this prerequisite was not met, the application was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application is struck out as incompetent.
- Applicant to pay costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
MISCELLANEOUS CIVIL APPLICATION 185 OF 2011
GEOFFREY NGATU GITHETHUKI.........................................................................................PLAINTIFF
VERSUS
ALEX MURIITHI KANGANGI.........................................................................................RESPONDENT
R U L I N G
This is the Applicant’s application (Notice of Motion) dated 18/10/2011 brought under section 79G Civil Procedure Act, Order 50 rule 6 and Order 51 rule 1 Civil Procedure rules for enlargement of time for filing an appeal against the Ruling of the Senior Resident Magistrate Wanguru dated 25/1/2011.
Without even going into the merits of this application I find no evidence of leave to file appeal having been sought before the trial Court. The order being appealed from is not one of those covered under Order 43 Civil Procedure Rules.
The Applicant is advised to go to the lower Court for leave as provided for under Order 43 rule (3) Civil Procedure Rules before refilling his application
Application is therefore incompetent and is struck out with costs.
DATED, SIGNED AND DELIVERED AT EMBU THIS 5TH DAY OF JUNE 2012.
H.I. ONG’UDI
JUDGE
In the presence of;
Mr. Nyaga for P.N. Mugo for Applicant
Mr. Kahiga for Respondent
Njue – C/c