[2023] KEHC 20142 (KLR)
The court found that the applicant had filed the application for leave to appeal promptly after the decision in question and that there would be no prejudice to the respondent if leave was granted. The court emphasized the applicant's constitutional right to access justice and to appeal decisions they are...
Source-derived case information.
- Citation
- [2023] KEHC 20142 (KLR)
- Parties
- Applicant: Kasarani Mall Limited; Respondent: UBA Kenya Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Reference Application E1123 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal
- Outcome
- Application allowed. Each party to bear its own costs.
- Judges
- JWW Mong'are
- Legal Topics
- Leave to Appeal, Advocates Remuneration Order, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasarani Mall Limited
Applicant
UBA Kenya Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to appeal to the Court of Appeal against the decision of the High Court.
- 2 Whether granting leave to appeal would prejudice the respondent.
Ratio Decidendi
The court found that the applicant had filed the application for leave to appeal promptly after the decision in question and that there would be no prejudice to the respondent if leave was granted. The court emphasized the applicant's constitutional right to access justice and to appeal decisions they are dissatisfied with. The court held that the application was merited and allowed the applicant to proceed to the Court of Appeal, with each party bearing its own costs.
Court Disposition
Application allowed. Each party to bear its own costs.
Orders
- Leave to appeal to the Court of Appeal against the decision of Hon. Lady Justice Winfrida A. Okwany granted to the applicant.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
Kasarani Mall Limited v UBA Kenya Bank Limited (Miscellaneous Reference Application E1123 of 2020) [2023] KEHC 20142 (KLR) (Commercial and Tax) (10 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20142 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Miscellaneous Reference Application E1123 of 2020
JWW Mong'are, J
July 10, 2023
Between
Kasarani Mall Limited
Applicant
and
Uba Kenya Bank Limited
Respondent
Ruling
1. By an application dated December 9, 2022 the Applicant has moved this court seeking the following reliefs;i.Spentii.That the Plaintiff be granted leave to Appeal to the Court of Appeal against the whole of the decision of the Hon. Lady Justice Winfrida A. Okwany given at Nairobi on December 8, 2022. iii.That the costs of the Application be provided for.
2. The application is supported by the grounds set within it and the supporting affidavit of Paul Kibet Rop. The application is opposed and the Respondent’s head of Legal and Company Secretary Micky Matheka filed a Replying Affidavit Sworn on 15/4/2023. This being a reference, an appeal to the Court of Appeal can only be filed with the leave of this court. Paragraph 11(3) of the Advocates Remuneration Order states as follows;“Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.”
3. I have considered the material placed before me by both parties. I note that the decision to be appealed against was rendered on December 8, 2022 and that on December 9, 2022 this application seeking leave to appeal was filed. I have further considered the objections filed herein by the Respondent. To my mind there shall be no prejudice visited upon the Defendants if the Applicant herein is allowed to proceed on Appeal in the Court of Appeal. Article 50 of the Constitution of Kenya on access to justice provides as follows;“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
4. This application seeking to review or appeal the decision of this is court, in my view is merited. The Applicant is within its rights to move to the Court of Appeal if dissatisfied with the decision of this court as guaranteed by the Constitution. I find and hold that the application has merit and the same is allowed. Each party to bear its own costs. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY 2023………………………………..J. W. W. MONG’AREJUDGEIn the Presence of:-Ms. Wetunga for the Applicant.Ms. Matata for the Respondent.Sylvia- Court Assistant