[1997] KECA 213 (KLR)
The Court of Appeal held that under Rule 39(b) of the Court of Appeal Rules, an application for leave to appeal must first be considered and refused by the High Court before the Court of Appeal can entertain such an application. In this case, the High Court did not refuse the application for leave to appeal but...
Source-derived case information.
- Citation
- [1997] KECA 213 (KLR)
- Parties
- Applicant: Margaret Makhanju John; Respondent: David John Kibwana (Executor)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 314 of 1996
- Procedural Posture
- Civil Application / Application for Leave to Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal, Probate and Administration, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Makhanju John
Applicant
David John Kibwana (Executor)
Respondent
Procedural Posture
Civil Application / Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant can seek leave to appeal to the Court of Appeal after the High Court struck out, rather than refused, her application for leave to appeal.
- 2 Whether Rule 39(b) of the Court of Appeal Rules requires the High Court to refuse, not strike out, an application for leave before the Court of Appeal can entertain such an application.
Ratio Decidendi
The Court of Appeal held that under Rule 39(b) of the Court of Appeal Rules, an application for leave to appeal must first be considered and refused by the High Court before the Court of Appeal can entertain such an application. In this case, the High Court did not refuse the application for leave to appeal but struck it out for being defective. Therefore, the applicant could not properly seek leave from the Court of Appeal. The application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA (CORAM: GICHERU, AKIWUMI & TUNOI, JJ.A.) CIVIL APPLICATION NO. NAI. 314 OF 1996 BETWEEN MARGARET MAKHANJU JOHN ............................. APPLICANT
AND
DAVID JOHN KIBWANA (EXECUTOR) ..................... RESPONDENT
(Application for leave to appeal in an intended appeal from a Ruling of the High Court of Kenya at Mombasa (Wambilyangah, J) dated 21st September, 1994 in P & A CAUSE NO. 258 OF 1993) ***********************
RULING OF THE COURT
The applicant seeks leave to appeal to this court against the ruling of the High Court of Kenya at Mombasa (Wambilyangah, J.) made on 21st September, 1994 in Probate and Administration Cause No. 258 of 1993 on the grounds that Ang'awa, J. declined to grant leave to appeal on 26th August, 1996 and that there is no express provision under the Law of Succession Act allowing an automatic right of appeal from ruling or order of the superior court to this Court without leave of either courts. This application must fail for the reason that the learned judge of the superior court, Ang'awa, J. never heard and decided on the application for leave lodged by the applicant. What she did for the reason she gave and with which we have some misgivings was to strike it out for being merely defective.
Rule 39(b) of the Rules of this Court provides that where an application for leave to appeal has in the first instance to be made to the superior court, it must first be considered and refused as opposed to being struck out before an application for such leave may be made to this Court. In the result we decline to grant this application and order that it be dismissed with costs. Dated and delivered at Mombasa this 29th January, 1997.
J. E. GICHERU
...............
JUDGE OF APPEAL
A. M. AKIWUMI
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR