[2024] KEHC 2777 (KLR)
The court found that the appeal was not properly before it because it was filed against an order that did not fall within the category of orders appealable as of right under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. Furthermore, the appellant did not seek or obtain leave to...
Source-derived case information.
- Citation
- [2024] KEHC 2777 (KLR)
- Parties
- Appellant: Valerie Madenya Munyeti; Respondent: Jack Omondi Bunde
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E015 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Appeal struck out for want of jurisdiction.
- Judges
- KW Kiarie
- Legal Topics
- Appeals as of Right, Leave to Appeal, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Valerie Madenya Munyeti
Appellant
Jack Omondi Bunde
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was properly before the court without leave as required under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules.
- 2 Whether the court had jurisdiction to hear and determine the appeal in the absence of leave.
- 3 Whether the appeal was filed within the prescribed time limits.
Ratio Decidendi
The court found that the appeal was not properly before it because it was filed against an order that did not fall within the category of orders appealable as of right under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. Furthermore, the appellant did not seek or obtain leave to appeal, which was a prerequisite for the court's jurisdiction in this matter. Additionally, the memorandum of appeal was filed 73 days after the date of the decision, and no explanation for the delay was provided. Consequently, the court held that it lacked jurisdiction to entertain the appeal and struck it out with costs.
Court Disposition
Appeal struck out for want of jurisdiction.
Orders
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
Munyeti v Bunde (Civil Appeal E015 of 2023) [2024] KEHC 2777 (KLR) (15 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2777 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E015 of 2023
KW Kiarie, J
March 15, 2024
Between
Valerie Madenya Munyeti
Appellant
and
Jack Omondi Bunde
Respondent
Ruling
1. Jack Omondi Bunde, respondent herein, raised a preliminary objection dated the 8th day of December 2023 premised on the following grounds:a.That the interlocutory appeal as filed offends the provisions of section 75 of the Civil Procedure Act and Order 43(1)(2) and (1)(3) of the Civil Procedure Rules in as far as the appeal is against the order of 18/1/2023 setting the matter for formal proof hearing which does not fall under order 43(1)(i) of the Civil Procedure Rules.b.That this court has no jurisdiction to hear and determine the appeal as filed herein.c.That leave to file the appeal herein was a prerequisite to the assumption of jurisdiction by this court on this appeal.d.That without leave, this court is deprived of jurisdiction to hear and determine the appeal as filed.
2. On February 22, 2022, Ms. Wangui, the respondent, requested 14 days to file submissions. As of March 8, 2024, the appellant had not filed a response or submissions regarding the preliminary objection.
3. Section 75 of the Civil Procedure Act provides:(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—(a)an order superseding an arbitration where the award has not been completed within the period allowed by the court;(b)an order on an award stated in the form of a special case;(c)an order modifying or correcting an award;(d)an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;(e)an order filing or refusing to file an award in an arbitration without the intervention of the court;(f)an order under section 64;(g)an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;(h)any order made under rules from which an appeal is expressly allowed by rules.(2)No appeal shall lie from any order passed in appeal under this section.
4. On the other hand, Order 43(1)(2) and (1)(3) of the Civil Procedure Rules amplify section 75 of the Act. I have not been persuaded that the appellant required leave to appeal.
5. It was argued that the memorandum of appeal was filed 73 days after the decision's date. No explanation for the delay was tendered. I, therefore, find that the appeal is improperly before the court. The same is struck out with costs for want of jurisdiction.
DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF MARCH 2024. KIARIE WAWERU KIARIEJUDGE