[2019] KEHC 5574 (KLR)
The application was found to be incompetent because the applicant failed to demonstrate that he had sought and been refused leave to appeal in the lower court as required by Order 43 of the Civil Procedure Rules. The High Court emphasized that compliance with the procedural requirements for leave to appeal is...
Source-derived case information.
- Citation
- [2019] KEHC 5574 (KLR)
- Parties
- Applicant: Thomas Ibrahim Mariga; Respondent: Jane Nyasuguta Nyang’au & Dominic Nyang’au (Suing as Legal Representatives of the Estate of Joseph Nyang’au Omuni - Deceased)
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 36 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
- Outcome
- application struck out with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Leave to Appeal, Stay of Execution, Order 43 Civil Procedure Rules, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Ibrahim Mariga
Applicant
Jane Nyasuguta Nyang’au & Dominic Nyang’au (Suing as Legal Representatives of the Estate of Joseph Nyang’au Omuni - Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal against the ruling of the lower court.
- 2 Whether the applicant is entitled to a stay of execution pending the intended appeal.
- 3 Whether the application is competent before the High Court without prior compliance with Order 43 of the Civil Procedure Rules.
Ratio Decidendi
The application was found to be incompetent because the applicant failed to demonstrate that he had sought and been refused leave to appeal in the lower court as required by Order 43 of the Civil Procedure Rules. The High Court emphasized that compliance with the procedural requirements for leave to appeal is mandatory before approaching the High Court. Since the applicant did not fulfill this prerequisite, the application for leave to appeal and all consequential prayers, including stay of execution and release of the attached motor vehicle, could not be entertained. The application was therefore struck out with costs to the respondent.
Court Disposition
application struck out with costs to the respondent
Orders
- The application is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
MISC. CIVIL CASE NO. 36 OF 2019
THOMAS IBRAHIM MARIGA........................................APPLICANT
=VRS=
JANE NYASUGUTA NYANG’AU & DOMINIC NYANG’AU
{Suing as Legal Representatives of the Estate of
JOSEPH NYANG’AU OMUNDI (DECEASED)}......RESPONDENTS
RULING
This ruling pertains to the applicant’s Notice of Motion dated 15th June 2019. The same seeks orders as follows: -
“1. (Spent)
2. (Spent)
3. (Spent)
4. That the Honourable court be pleased to grant leave to the applicant to appeal against the ruling of Hon. S. K. Arome – SRM delivered on 12. 6.2019 vide Keroka SRMCC No. 93 of 2016.
5. That there be a stay of execution of the ruling delivered on 12. 6.2019 vide Keroka SRMCC No. 93 of 2016 and all consequential orders arising therefrom pending hearing of the intended appeal herein.
6. That his Honourable court do issue further orders that may be expedient in the interest of justice.
7. That the costs of this application be in the cause.”
In other words, the applicant seeks an order for release of his motor vehicle Registration No. KBB 093D, which is in the custody of the auctioneer, pending hearing and determination of the appeal he proposes to file. The grounds for the application as can be discerned from its face and the supporting affidavit are that he has paid the entire decretal sum and the auctioneer is yet to tax his bill and the continued attachment of the motor vehicle is prejudicial.
The application is vehemently opposed vide a replying affidavit sworn by Jane Nyasuguta the respondent. Learned Counsel for the parties canvassed the application before me on 20th June 2019. I have considered the material placed before me carefully. My finding however is that the application is incompetent. The orders made by the lower court were pursuant to Order 22 Rule 22, Order 42 Rule 6, Order 51 Rule 1 and 3 the main one being Order 22 Rule 22. Order 43 (2) of the Civil Procedure Rules provides that before one can come to this court they must first have leave to appeal. Order 43 (3) of the Civil Procedure Rulesis clear on how such leave is obtained. It states:-
“(3) An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
(4) Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”
It has not been demonstrated that leave was sought in the lower court and was refused. The applicant must first comply with the requirements of Order 43 before coming to this court. The application for leave is rejected and accordingly the other prayers do not avail. The application is struck out with costs to the respondent. It is so ordered.
Signed, dated and delivered in open court this day of 18th July 2019.
E. N. MAINA
JUDGE