[1979] KECA 16 (KLR)
The Court of Appeal is deprived of jurisdiction to entertain a third appeal from a subordinate court decision by virtue of section 71A(2) of the Civil Procedure Code, as amended by the Statute Law (Miscellaneous Amendments) Act 1978. Since the law now provides that such appeals are final, the court cannot grant an...
Source-derived case information.
- Citation
- [1979] KECA 16 (KLR)
- Parties
- Applicant: Ndetei Muthuka; Respondent: Ndaisi Muluma
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 25 of 1978
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application dismissed for want of jurisdiction
- Legal Topics
- Appeals Jurisdiction, Extension of Time, Finality of Decisions
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Ndetei Muthuka
Applicant
Ndaisi Muluma
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain a third appeal from a subordinate court decision.
- 2 Whether the applicant is entitled to an extension of time to file a third appeal.
Ratio Decidendi
The Court of Appeal is deprived of jurisdiction to entertain a third appeal from a subordinate court decision by virtue of section 71A(2) of the Civil Procedure Code, as amended by the Statute Law (Miscellaneous Amendments) Act 1978. Since the law now provides that such appeals are final, the court cannot grant an extension of time for filing an appeal it has no power to hear. The application must therefore be dismissed for want of jurisdiction, and no discretion arises for consideration.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for extension of time to file a third appeal is dismissed.
- Costs are awarded to the respondent, fixed at Shs 150.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Law JA (in chambers))
CIVIL APPLICATION NO NAI 25 OF 1978
BETWEEN
NDETI MUTHUKA....................................................APPLICANT
AND
NDAISI MULUMA.................................................RESPONDENT
JUDGMENT
This is an application by an intending appellant for an extension of time to enable him to file his intended appeal.
The original suit, which has given rise to this application, was filed in 1973 in a Court of the third class. The applicant lost. He appealed to a subordinate court of the first class. His appeal was dismissed. He then appealed to the High Court, and was again unsuccessful. He now wishes to bring a third appeal to this Court.
In Sanga v Baya[1973] EA 312, this Court’s predecessor held that the Court of Appeal has no jurisdiction in Kenya to entertain a third appeal.
Effect has now been given to that decision by legislation. The Schedule to the Statute Law (Miscellaneous Amendments) Act 1978 has amended section 71A of Civil procedure Code by adding a new subsection to it.
Section 71A(now section 71A(1)) provides that an appeal shall lie to the High Court from a decree passed by a subordinate court of the first class on an appeal from a subordinate court of the third class. The new subsection (section 71A (2) reads as follows: “An appeal under this section shall be final”.
This Court has accordingly been deprived by statute of jurisdiction to entertain a third appeal. It follows that I have no jurisdiction to entertain this application to extend time for filing a third appeal. Having no jurisdiction, no question of any exercise of discretion by me arises. I am accordingly bound to dismiss this application, and I order that it be dismissed, with costs, which with the consent of the advocates concerned in this application, I fix at Shs 150.
Order accordingly.
DATED and delivered at Nairobi 3rd March 1979
E.J.E LAW
..................
JUDGE OF APPEAL (in chambers)
I certify that this is a true copy of the original
DEPUTY REGISTRAR