[1997] KECA 363 (KLR)
The Court of Appeal held that the High Court did not expressly grant leave to the appellants to apply for an order of prohibition as required under Order 53 of the Civil Procedure Rules. The consent order granted only the stay sought in prayer 3, conditional upon leave being granted, but did not itself grant leave....
Source-derived case information.
- Citation
- [1997] KECA 363 (KLR)
- Parties
- Appellant: Julius Ntogaiti M'Ethangatha; Appellant: Jason Kiiru Mbeeria; Appellant: Henry Ethaiba; Appellant: M'Iguathu M'Kiriti; Respondent: The District Land Adjudication Officer (Nyambene District); Respondent: M'Mutua M'Ikombo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 161 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Leave to Apply for Judicial Review, Order 53 Procedure, Prohibition Orders, Land Adjudication Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ntogaiti M'Ethangatha
Appellant
Jason Kiiru Mbeeria
Appellant
Henry Ethaiba
Appellant
M'Iguathu M'Kiriti
Appellant
The District Land Adjudication Officer (Nyambene District)
Respondent
M'Mutua M'Ikombo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court granted leave to apply for an order of prohibition as required under Order 53 of the Civil Procedure Rules.
- 2 Whether the consent order granting prayer 3 amounted to a grant of leave to file the substantive motion for prohibition.
- 3 Whether the notice of motion for prohibition was properly before the court in the absence of an express order granting leave.
Ratio Decidendi
The Court of Appeal held that the High Court did not expressly grant leave to the appellants to apply for an order of prohibition as required under Order 53 of the Civil Procedure Rules. The consent order granted only the stay sought in prayer 3, conditional upon leave being granted, but did not itself grant leave. The requirement for leave is not a mere formality but a mandatory procedural step that must be satisfied in clear terms. In the absence of an express order granting leave, the notice of motion for prohibition was incompetent and the High Court was correct in dismissing it. The appeal was therefore dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CORAM: GICHERU, OMOLO & LAKHA, JJ.A. CIVIL APPEAL NO. 161 OF 1996
BETWEEN
JULIUS NTOGAITI M'ETHANGATHA
JASON KIIRU MBEERIA
HENRY ETHAIBA
M'IGUATHU M'KIRITI ................................... APPELLANTS
AND
THE DISTRICT LAND ADJUDICATION OFFICER
(NYAMBENE DISTRICT)
M'MUTUA M'IKOMBO ..................................... RESPONDENTS
(Being an appeal from the ruling of the High Court of Kenya at Nairobi (Justice Pall) dated 2nd July, 1996 in H.C. MISC. A. NO. 1296 OF 1995 CONSOLIDATED WITH H.C. MISC. A. NO. 1346 OF
JUDGMENT OF THE COURT
There is really no merit in this appeal. By a chamber summons under Order 53 Rule 1(?), (2), (3) and (4) of the Civil Proceedings Rules the, appellants asked the High Court to grant leave to apply for an order of prohibition and by prayer number three in the said chamber summons, the appellants specifically asked that if leave sought in prayer one was granted, the same should operate as a stay. That application was filed on the 29th November, 1995, and came up before Aluoch, J on the 11th December, 1995. On that day a consent order was made to this effect:-
"Prayer 3 of the application dated 29. 11. 93 in Misc. Application No. 1296 of 1995 be and is hereby granted."
Prayer 3, as we have said was the one asking that if leave was granted, it was to operate as a stay. Following this consent order the appellants filed the notice of motion asking for prohibition and when that motion came up for hearing before Pall, J, as he then was, on the 2nd July, 1996, he dismissed the same on the ground that leave had not been granted to warrant the filing of the motion. It is against that order this appeal is brought.
We are unable to agree with learned counsel for the appellants that the consent order we have set out above amounted to the grant of leave to bring the motion. The prayer for leave was in paragraph one of the motion and we see no reason to assume, as the appellants obviously did, that leave must have been granted. Under the provisions of order 53 the grant of leave is mandatory and it is not right for us to assume that the decision to grant or not to grant leave is a formality. Leave must be granted or refused in plain terms.There was no order granting leave and we agree with the learned Judge that the motion in the absence of leave, did not lie. We dismiss this appeal with costs to the respondents.
Dated and delivered at Nairobi this 22nd May, 1997.
J. E. GICHERU
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JUDGE OF APPEAL
R. S. C. OMOLO
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JUDGE OF APPEAL
A. A. LAKHA
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR