[1996] KECA 74 (KLR)
The Court of Appeal found that the appeal did not raise any point of law as required for a second appeal under Section 72 of the Civil Procedure Act. The plaint in the subordinate court failed to identify the parcel of land allegedly trespassed upon, making it impossible for the court to determine whether the...
Source-derived case information.
- Citation
- [1996] KECA 74 (KLR)
- Parties
- Appellant: Ibrahim Mulu M’Inyingi; Respondent: Peter M’Itabathi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 141 of 1996
- Procedural Posture
- Civil Appeal / Second Appeal on Interlocutory Application
- Outcome
- appeal dismissed with costs
- Legal Topics
- Interlocutory Applications, Pleadings Deficiency, Identification of Land, Concurrent Findings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Mulu M’Inyingi
Appellant
Peter M’Itabathi
Respondent
Procedural Posture
Civil Appeal / Second Appeal on Interlocutory Application
Legal Issues
- 1 Whether the appeal raises a point of law within the meaning of Section 72 of the Civil Procedure Act.
- 2 Whether the plaint sufficiently identified the parcel of land in dispute.
- 3 Whether the findings of the subordinate and superior courts were correct and should be upheld.
Ratio Decidendi
The Court of Appeal found that the appeal did not raise any point of law as required for a second appeal under Section 72 of the Civil Procedure Act. The plaint in the subordinate court failed to identify the parcel of land allegedly trespassed upon, making it impossible for the court to determine whether the subject matter of the claim and the counter-claim were the same. Both the subordinate and superior courts had considered the issues and made concurrent findings, and the appellate court found no reason to interfere with those findings. Consequently, the appeal was dismissed for lack of merit.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Appeal 141 of 1996
IBRAHIM MULU M’INYINGI…………….……APPELLANT
AND
PETER M’ITABATHI……………...………….RESPONDENT
(Appeal from a decree of the High Court of Kenya a MERU (Justice Ong’udi C.O) dated 19th October, 1995INH.C.C.A. NO. 15 OF 1995)
***********************
JUDGMENT OF THE COURT
This is a second appeal on an interlocutory application. There is no point of law raised within the meaning of Section 72 of the Civil Procedure Act (Cap 21). The plaint filed in the subordinate court did not identify the parcel of land upon which the respondent was alleged to have trespassed. We cannot tell from the pleadings whether the appellant was referring to the same parcel of land to which the counter-claim relates. In any event, both the subordinate and superior courts considered the issues and made a concurrent finding with which we can find no fault.
The appeal, therefore, lacks merit and it is hereby dismissed with costs.
Dated and delivered at Nairobi this 14th day of October, 1996.
R. O. KWACH
…………………….
JUDGE OF APPEAL
A.M. AKIWUMI
…………………….
JUDGE OF APPEAL
A.A. LAKHA
……………………..
JUDGE OF APPEAL