[2012] KEHC 3004 (KLR)
The court found that the application for leave to appeal was brought promptly, within five days of the ruling, and that an aggrieved party has a right to seek leave to appeal. The court agreed with the Applicant that the merits of the grounds of appeal are not to be canvassed at this stage, as that is the function...
Source-derived case information.
- Citation
- [2012] KEHC 3004 (KLR)
- Parties
- Applicant: Jacinta Wanza Makenzi; Respondent: Muhatia Pala Auctioneers; Respondent: Marden Kelli; Respondent: Kevin Mutinda Kelli; Respondent: Sylvia Mwende Kelli
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 85 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Application for Leave to Appeal
- Outcome
- application allowed
- Judges
- REA Ougo
- Legal Topics
- Leave to Appeal, Preliminary Objection, Dismissal of Suit, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wanza Makenzi
Applicant
Muhatia Pala Auctioneers
Respondent
Marden Kelli
Respondent
Kevin Mutinda Kelli
Respondent
Sylvia Mwende Kelli
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the Plaintiff/Applicant should be granted leave to appeal against the ruling and orders of the court delivered on 8/3/2012.
- 2 Whether the application for leave to appeal was filed within the appropriate time frame.
Ratio Decidendi
The court found that the application for leave to appeal was brought promptly, within five days of the ruling, and that an aggrieved party has a right to seek leave to appeal. The court agreed with the Applicant that the merits of the grounds of appeal are not to be canvassed at this stage, as that is the function of the appellate court. The court exercised its discretion to grant leave, noting that the Applicant had complied with procedural requirements and that justice would be served by allowing the appeal process to proceed. The application was therefore allowed, and the Applicant was granted leave to appeal, with directions to file the appeal within 30 days. Costs were ordered to be...
Court Disposition
application allowed
Orders
- Leave is granted to the Plaintiff/Applicant to appeal against the entire ruling, orders, and findings of the court delivered on 8/3/2012.
- The applicant shall file the appeal within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
ENVIRONMENTAL & LAND CASE 85 OF 2011
JACINTA WANZA MAKENZI………………………………..PLAINTIFF/APPLICANT
VERSUS
MUHATIA PALA AUCTIONEERS………...……….1ST DEFENDANT/RESPONDENT
MARDEN KELLI………………………………..….2ND DEFENDANT/RESPONDENT
KEVIN MUTINDA KELLI………..……………..….3RD DEFENDANT/RESPONDENT
SYLVIA MWENDE KELLI……………..…………..4TH DEFENDANT/RESPONDENT
RULING
The Plaintiff/Applicant has filed a Notice of Motion application dated 13/3/2012 for orders that;
1. Leave be granted to the Plaintiff to appeal against the entire Ruling, Orders and Findings of the Honorable Court delivered on 8/3/2012.
2. Costs of this application be provided for.
The application is premised on the ground that the Court upheld the Defendants/Respondents’ preliminary objection thereby dismissing the Plaintiff’s suit with costs. It is further premised on an annexed affidavit sworn by the Applicant, Jacinta Wanza Makenzi dated 13/3/2012.
The Defendants/Respondents filed grounds of oppositions in opposition to the application herein. The Defendants aver that the application is an abuse of the court process; that the intended appeal has remote chances of success and that litigation must come to an end.
I have considered the oral submissions made by the Counsels. The issue for determination is whether this Court should grant the Plaintiff/Applicant leave to appeal against a decision of the Court (Mugo. J) dated 8/3/2012. It is established that whether or not the Court would grant leave to appeal is a matter for the discretion of the Court. The Applicant is aggrieved by the decision of Justice Mugo. I note that this application was brought within 5 days after the ruling was read.
When the application came for inter-partes hearing, counsel for the Defendants reiterated the contents of the grounds of opposition. On the other hand, counsel for the Plaintiff/Applicant argued that at this stage the parties cannot argue the merits of the grounds of appeal, as the same is for the Court of Appeal. That it is in the interest of justice that the Plaintiff seeks leave to appeal, so as to canvass the grounds of appeal at the Court of appeal. That since the appeal shall be a first appeal, the Court of Appeal shall consider matters of law and fact, and that the findings of the superior Court will be determined by the Court of appeal, hence it shall be an issue of litigation between the parties. Further that in the event that the appeal is unsuccessful, the Defendants shall have recourse of costs.
I agree with counsel for the Plaintiff/Applicant that at this stage, the parties cannot argue the merits of the grounds of appeal. I find that the application was brought within good time. A party who is aggrieved has a right to appeal against the order, and in this case the Applicant has sought the Court’s leave to appeal. I therefore allow the Plaintiff/Applicant’s application and grant prayer No. 2. The applicant shall file the appeal within 30 days from the date of this ruling. Costs shall be in the cause.
Dated, signed and delivered this17th Day ofJuly 2012
R. OUGO
JUDGE
In the Presence of:-
…………………………………………..For the Applicant
………………………………………… For the Respondent
Kabiru......................................................................Court Clerk