[2011] KEHC 2860 (KLR)
The court found that both applications for leave to appeal should be allowed. The rationale was that the appellate court is the appropriate forum to determine whether the parties were properly before the High Court, and denying leave on the basis of the High Court's own ruling on party status would be unjust. The...
Source-derived case information.
- Citation
- [2011] KEHC 2860 (KLR)
- Parties
- Plaintiff: Nanjira Lukondo Makokha and 104 others; Respondent: Elizabeth Chunge t/a Elizabeth Chunge & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 299 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Applications for Leave to Appeal
- Outcome
- Both applications for leave to appeal are allowed. No order as to costs.
- Legal Topics
- Leave to Appeal, Party Status, Affidavit Sworn by Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nanjira Lukondo Makokha and 104 others
Plaintiff
Elizabeth Chunge t/a Elizabeth Chunge & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Applications for Leave to Appeal
Legal Issues
- 1 Whether leave should be granted to both plaintiffs and defendant to appeal against the order and ruling of the Honourable Mr. Justice Mwera given on 8th November, 2010.
- 2 Whether the person swearing the affidavit in support of the application was a proper party to do so.
- 3 Whether parties denied status by the High Court can seek leave to appeal that very determination.
Ratio Decidendi
The court found that both applications for leave to appeal should be allowed. The rationale was that the appellate court is the appropriate forum to determine whether the parties were properly before the High Court, and denying leave on the basis of the High Court's own ruling on party status would be unjust. The court also held that the individual who swore the affidavit in support of the application was not a stranger, as he was listed among the plaintiffs. Therefore, both the plaintiffs and the defendant were granted leave to appeal the ruling of 8th November, 2010 to the Court of Appeal. No order as to costs was made.
Court Disposition
Both applications for leave to appeal are allowed. No order as to costs.
Orders
- Leave is granted to the plaintiffs/applicants to appeal against the order and ruling of 8th November, 2010 to the Court of Appeal of Kenya at Nairobi.
- Leave is granted to the defendant/applicant to appeal against the order and ruling of 8th November, 2010 to the Court of Appeal of Kenya at Nairobi.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO. 299 OF 2007
IN THE MATTER OF DELIVERY OF CASH ACCOUNT RECORDS OF PROCEEDINGS JUDGMENT AND
TERMS OF SETTLEMENT IN THE SUBORDINATE COURT AND PAYMENT BY ELIZABETH CHUNGE T/A
ELIZABETH CHUNGE & COMPANY ADVOCATES
BETWEEN
NANJIRA LUKONDO MAKOKHA AND 104 OTHERS..........................................................................PLAINTIFFS
VERSUS
1. ELIZABETH CHUNGE T/AELIZABETH CHUNGE & CO. ADVOCATES.................................RESPONDENT
2. MUMIAS SUGAR CO. LTD.(THROUGH WETANGULA & CO. ADVOCATES....1ST INTERESTED PARTY
3. THE HON. ATTORNEY GENERAL...........................................................................2ND INTERESTED PARTY
4. THE LAW SOCIETY OF KENYA..............................................................................3RD INTERESTED PARTY
R U L I N G
Two applications are before me. The first is an application by way of Chamber Summons dated 8th November, 2010. It was filed by M/s O P Ngoge & Associates’ Advocates for the plaintiffs. It was filed under section 3A of the Civil Procedure Act (Cap 21 Laws of Kenya) and Order 42 Rule 1(4) of the Civil Procedure Rules. The application was filed under Certificate of Urgency. The substantive prayer is as follows: -
“That leave be granted to the plaintiffs/applicants to appeal against the order and ruling of the Honourable Mr. Justice Mwera given on the 8th November, 2010 to the Court of Appeal of Kenya at Nairobi.”
The second application is a Chamber Summons dated 19th November, 2010 filed by Oloo & Oloo Advocates for the defendant. It was filed under the same provisions of the law. The substantive prayer is as follows: -
“That leave be granted to the defendant/applicant to appeal against the order and ruling of the Honourable Mr. Justice Mwera given on 8th November 2010 to the Court of Appeal of Kenya at Nairobi.”
The application dated 8th November 2010 was opposed verbally by Mrs. Oloo for the defendant on the grounds that the person who made the application was a stranger, and that there are no plaintiffs in these proceedings, since the court ruled that there were no such parties. Mr. Ngoge retorted that it was the same decision and ruling of the High Court that the plaintiffs wanted to contest in the Court of Appeal.
Having considered the two applications, I find no reason to disallow any of the applications. The appeal will determine whether the decision of the High Court is correct or not. The parties who were before the High Court cannot be denied the chance to go to the Court of Appeal merely because the High Court has ruled that they were before it wrongly. It will be the Court of Appeal to determine whether they are or were proper parties.
The person who swore the affidavit in the application dated 8th November, 2010 is also not a stranger. Of the more than one hundred plaintiffs, he appears in a list filed in court as number 6. I am therefore of the view that he can swear the affidavit in support of that application.
For the above reasons, I allow both the application. Parties will file their appeals in accordance with the law and applicable rules.
I make no orders as to costs.
Dated and delivered at Nairobi this 1st day of March, 2011.
..............................
GEORGE DULU
JUDGE
In the Presence of
Mr. Ngoge for plaintiffs
Mrs. Oloo for defendants
C Muendo – court clerk