[2009] KEHC 2060 (KLR)

[2009] KEHC 2060 (KLR)

The court found that the preliminary objection was only sustainable on grounds (a) and (b), which raised pure points of law regarding the existence of an appeal and the jurisdiction of the Deputy Registrar. Upon review, the court determined that the Deputy Registrar exercised jurisdiction properly under order XLVIII rule 5(1)(b)(IX), and that the right of appeal to a judge in chambers is expressly provided for under order XLVIII rule 5(2) and (3). The memorandum of appeal was filed within the prescribed 7-day period and directed to the correct forum. The absence of a specified time frame for service of the memorandum of appeal means it must be served within a reasonable time. The...

Citation
[2009] KEHC 2060 (KLR)
Parties
Applicant: J.B.S Halake; Defendant: Burrel Engineering & Construction Co. Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
18 September 2009
Case Number
Civil Suit 2318 of 1997
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Application for Stay of Execution Pending Appeal
Outcome
preliminary objection dismissed
Judges
RN Nambuye
Legal Topics
Stay of Execution, Appeals From Registrar, Preliminary Objection, Jurisdiction of Registrar
Source Language
English
Civil Procedure Stay of Execution Appeals From Registrar Preliminary Objection Jurisdiction of Registrar

Case Brief

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Parties

J.B.S Halake

Applicant

Burrel Engineering & Construction Co. Ltd

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection to Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the preliminary objection to the application for stay of execution is sustainable on points of law.
  2. 2 Whether an appeal lies from the decision of the Deputy Registrar to a judge in chambers under the Civil Procedure Rules.
  3. 3 Whether the memorandum of appeal was filed within the prescribed time and before the correct forum.

Ratio Decidendi

The court found that the preliminary objection was only sustainable on grounds (a) and (b), which raised pure points of law regarding the existence of an appeal and the jurisdiction of the Deputy Registrar. Upon review, the court determined that the Deputy Registrar exercised jurisdiction properly under order XLVIII rule 5(1)(b)(IX), and that the right of appeal to a judge in chambers is expressly provided for under order XLVIII rule 5(2) and (3). The memorandum of appeal was filed within the prescribed 7-day period and directed to the correct forum. The absence of a specified time frame for service of the memorandum of appeal means it must be served within a reasonable time. The...

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection dated 4/3/2009 and filed on 5/3/2009 is declined and dismissed with costs to the objector.
  • The applicant's memorandum of appeal is deemed properly filed and before the correct forum.