[2002] KECA 237 (KLR)
The Court of Appeal held that since the appeal was brought under Order 52 Rule 7 and 10 of the Civil Procedure Rules, and not under rules 4, 5, 6, or 6A, leave of the superior court or the Court of Appeal was mandatory. The respondent conceded that no such leave had been obtained. Consequently, the Court lacked...
Source-derived case information.
- Citation
- [2002] KECA 237 (KLR)
- Parties
- Applicant: Kamere & Co. Advocates; Respondent: Cresswell, Mann & Dod Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 304 of 2000
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out for want of jurisdiction.
- Legal Topics
- Appeal Jurisdiction, Leave to Appeal, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamere & Co. Advocates
Applicant
Cresswell, Mann & Dod Advocates
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether leave of the superior court or the Court of Appeal was required to file an appeal under Order 52 Rule 7 and 10 of the Civil Procedure Rules.
- 2 Whether the Court of Appeal had jurisdiction to hear the appeal in the absence of leave.
- 3 Whether the appeal should be struck out for want of jurisdiction.
Ratio Decidendi
The Court of Appeal held that since the appeal was brought under Order 52 Rule 7 and 10 of the Civil Procedure Rules, and not under rules 4, 5, 6, or 6A, leave of the superior court or the Court of Appeal was mandatory. The respondent conceded that no such leave had been obtained. Consequently, the Court lacked jurisdiction to entertain the appeal or to determine any issues arising from it, including whether it was filed in time. The absence of jurisdiction was fatal, and the appeal was therefore struck out with costs to the applicant.
Court Disposition
Appeal struck out for want of jurisdiction.
Orders
- Civil Appeal No. 304 of 2000 is struck out with costs to the applicant.
- Costs of the motion to strike out the appeal are awarded to the applicant.
Full Case Text
Judgment text and source record
9 paragraphs
IN THE COURT OF APPEALAT NAKURU (CORAM: OMOLO, TUNOI & OWUOR, JJ.A)
CIVIL APPEAL(APPLICATION) NO. 304 OF 2000BETWEEN
KAMERE & CO. ADVOCATES ..................APPLICANT/RESPONDENT AND CRESSWELL, MANN & DOD ADVOCATES .........RESPONDENT/APPELLANT(An application to strike out an appeal from the Judgment of the High Court of Kenya at Nakuru (Mr. Justice Rimiat) dated 17th May, 2000
in H.C.C.C NO. 542 OF 1996(O.S) ******************RULING OF THE COURT
The originating summons before the superior court was brought under Order 52 Rule 7 and 10 of the Civil Procedure Rules. An appeal would lie as of right only under rules 4, 5, 6 and 6A of that order. One, therefore, requires the leave of the superior court or of this Court to be able to mount a competent appeal under the remaining rules of the order. Mr. Kimani for the respondent concedes that they did not obtain leave.The Court, accordingly, has no jurisdiction to hear the appeal or even to determine whether the appeal was or was not lodged in time. We allow the notice of motion lodged in this Court on 23rd August, 2001 and order that Civil Appeal No. 304 of 2000lodged in the court on 27th October, 2001 be and is hereby struck out with costs. We award the costs of the motion to strike out the appeal to the applicant.
Dated and delivered at Nakuru this 20th day of September, 2002.
R.S.C OMOLOJUDGE OF APPEALP. K. TUNOIJUDGE OF APPEALE. OWUORJUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR