[1995] KECA 106 (KLR)
The Court held that since there was no evidence on record that leave to appeal had been sought or granted by the High Court, any appeal to the Court of Appeal in this matter would be incompetent. The respondent's assertion that leave was sought verbally was not supported by the record. Therefore, the notice of...
Source-derived case information.
- Citation
- [1995] KECA 106 (KLR)
- Parties
- Applicant: Lawrence Itube Nganga; Applicant: Patrick Kinuthia Nganga; Respondent: Gabriel Mwaura Nganga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 71 of 1995
- Procedural Posture
- Civil Application / Application for Striking Out Notice of Appeal
- Outcome
- Application allowed. Notice of Appeal struck out with costs to the applicants.
- Judges
- RO Kwach
- Legal Topics
- Leave to Appeal, Notice of Appeal, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Itube Nganga
Applicant
Patrick Kinuthia Nganga
Applicant
Gabriel Mwaura Nganga
Respondent
Procedural Posture
Civil Application / Application for Striking Out Notice of Appeal
Legal Issues
- 1 Whether an appeal lies to the Court of Appeal without leave of the High Court in the present matter.
- 2 Whether there is evidence that leave to appeal was sought or granted by the High Court.
Ratio Decidendi
The Court held that since there was no evidence on record that leave to appeal had been sought or granted by the High Court, any appeal to the Court of Appeal in this matter would be incompetent. The respondent's assertion that leave was sought verbally was not supported by the record. Therefore, the notice of appeal filed was struck out as it was improperly before the Court.
Court Disposition
Application allowed. Notice of Appeal struck out with costs to the applicants.
Orders
- The Notice of Appeal filed on 13th July, 1994 and dated 11th July, 1994 is struck out.
- Costs assessed at Shs.500/- to the applicants, payable within 7 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, OMOLO & TUNOI, JJ.A)
CIVIL APPLICATION NO. NAI 71 OF 1995
BETWEEN
LAWRENCE ITUBE NGANGA
PATRICK KINUTHIA NGANGA .......................... APPLICANTS
AND
GABRIEL MWAURA NGANGA ............................ RESPONDENT
(Application for striking out a notice of appeal filed on 13th July, 1994 in an intended appeal from the judgment of the High Court of Kenya (Mr. Justice A.B. Shah) delivered on 30th June, 1994
in
H.C.C.C SUCCESSION CAUSE NO. 975 OF 1993
********************
RULING OF THE COURT
An appeal does not lie to this Court in this matter without the leave of the superior court. There is no evidence that such leave was sought or granted. Mr. Rumba Kinuthia, for the respondent, says that he sought leave verbally before the Judge but with respect there is no evidence on record to support this claim. That being the position any appeal to this Court without leave would be incompetent. In the circumstance we allow the application and order that the Notice of Appeal filed herein on 13th July, 1994 and dated 11th July, 1994 be and is hereby struck out with costs for the applicant assessed at Shs.500/-, to be paid within 7 days and the defendant execution to be issued.
Dated and delivered at this 22nd day of May, 1995.
R. O. KWACH
...........
JUDGE OF APPEAL
R. S. C. OMOLO
...........
JUDGE OF APPEAL
P. K. TUNOI
...........
JUDGE OF APPEAL