[2005] KEHC 311 (KLR)
The court held that it lacked jurisdiction to entertain the application for enlargement of time to seek leave to appeal because the applicant had not obtained leave from the lower court as required. The appeal itself was incompetent for being filed without leave and out of time. The proper procedure would have been...
Source-derived case information.
- Citation
- [2005] KEHC 311 (KLR)
- Parties
- Appellant: Mbinyo Mulokya; Appellant: Elizabeth Wayua; Respondent: Edward Nguli
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 38 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Enlargement of Time and Leave to Appeal
- Outcome
- application dismissed; appeal struck out as incompetent
- Judges
- DA Onyancha
- Legal Topics
- Leave to Appeal, Enlargement of Time, Jurisdiction, Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbinyo Mulokya
Appellant
Elizabeth Wayua
Appellant
Edward Nguli
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Enlargement of Time and Leave to Appeal
Legal Issues
- 1 Whether the court has jurisdiction to entertain an application for enlargement of time to seek leave to appeal when no leave was obtained from the lower court.
- 2 Whether the appeal filed without leave and out of time is competent.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for enlargement of time to seek leave to appeal because the applicant had not obtained leave from the lower court as required. The appeal itself was incompetent for being filed without leave and out of time. The proper procedure would have been to seek leave from the lower court before filing the appeal. As the application and the appeal were both procedurally defective, the court dismissed the application and struck out the appeal for want of jurisdiction and non-compliance with mandatory procedural requirements.
Court Disposition
application dismissed; appeal struck out as incompetent
Orders
- The application for enlargement of time and leave to appeal is dismissed with costs to the respondent.
- The appeal filed without leave of court is struck out and dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Case 38 of 2003
MBINYO MULOKYA
ELIZABETH WAYUA ………...……..………….……………………… APPELLANTS
VERSUS
EDWARD NGULI ………………………..…………………………… RESPONDENT
R U L I N G
This application for enlargement of time to file an application for leave to appeal was filed in the lower court vide an application dated 26/8/03. It was dismissed by the Resident Magistrate. Instead of the applicant seeking leave to appeal against the ruling, he instead filed a fresh application in this court, which is the one before the court. In the meantime he had also filed a substantive appeal in this court without obtaining leave of the lower court that made the ruling he is appealing against. So in this application before court, the applicant also sought that this court enlarges time to file application seeking the leave to appeal. That is to say, that the appeal presently is incompetent for lack not only of leave to file it but also for being filed out of time. Further more, the application before the court is itself incompetent incurably because, what the applicant should have done is to file an appeal with leave of the court.
Under these circumstances, this court has no jurisdiction to entertain this application. It must fail therefore. It is dismissed with costs to the respondent. The effect of the same is to strike out and dismiss the appeal which was filed without leave of court. Orders accordingly.
Dated and delivered at Machakos this 9th day of November 2005.
D.A. ONYANCHA
JUDGE