[1999] KECA 41 (KLR)
The Court of Appeal held that the appeal was incompetent because the order appealed against required leave of the High Court, which had not been obtained. The court found that the absence of leave was a fatal procedural defect that could not be cured by the mere presence of senior counsel or by adjournment....
Source-derived case information.
- Citation
- [1999] KECA 41 (KLR)
- Parties
- Appellant: John Kananda & Others; Respondent: Harambee Co-op Society Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 259 of 1998
- Procedural Posture
- Civil Appeal / Appeal Against High Court Order
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Leave to Appeal, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kananda & Others
Appellant
Harambee Co-op Society Ltd
Respondent
Procedural Posture
Civil Appeal / Appeal Against High Court Order
Legal Issues
- 1 Whether the appeal was competent in the absence of leave from the High Court as required.
- 2 Whether the presence of senior counsel could cure the procedural defect.
Ratio Decidendi
The Court of Appeal held that the appeal was incompetent because the order appealed against required leave of the High Court, which had not been obtained. The court found that the absence of leave was a fatal procedural defect that could not be cured by the mere presence of senior counsel or by adjournment. Consequently, the appeal was struck out for want of jurisdiction, with no order as to costs.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is hereby struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, TUNOI & SHAH, JJ.A.
CIVIL APPEAL NO. 259 OF 1998
BETWEEN
JOHN KANANDA & OTHERS ................................APPELLANTS
AND HARAMBEE CO-OP SOCIETY LTD ...........................RESPONDENT
(Appeal from an order of the High Court of Kenya at Nairobi (Amin J) dated 2nd September, 1998
inH.C.C.C. NO. 267 OF 1998)********************** ORDER OF THE COURT
The order appealed against obviously required the leave of the Judge to enable the appellant mount a valid appeal.
The appeal is clearly incompetent and though Mr. Khamala asks us to adjourn the matter to enable his senior to appear. We cannot see how her presence will change the position. The appeal being incompetent, we order that it be and is hereby struck out but with no order as to costs.
Made at Nairobi this 28th day of April, 1999.
R. S. C. OMOLO --------------- JUDGE OF APPEAL
P. K. TUNOI --------------- JUDGE OF APPEAL
A. B. SHAH --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR