[2006] KEHC 295 (KLR)
The court held that the applicant's argument that leave was required to file the appeal was misconceived, as Order 42 Rule 1 (1) (h) of the Civil Procedure Rules expressly provides that an appeal from a ruling under Order 9 B is as of right. Therefore, the application to discharge the interim stay orders on the...
Source-derived case information.
- Citation
- [2006] KEHC 295 (KLR)
- Parties
- Appellant: Nelson Bichanga; Respondent: John Magwa Obwere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 846 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Discharge Interim Stay Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Leave to Appeal, Interim Orders, Stay of Execution, Appeals From Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nelson Bichanga
Appellant
John Magwa Obwere
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Discharge Interim Stay Orders
Legal Issues
- 1 Whether leave of the court was required to file the appeal from the ruling under Order 9 B of the Civil Procedure Rules.
- 2 Whether the interim orders of stay of execution should be discharged for want of leave.
Ratio Decidendi
The court held that the applicant's argument that leave was required to file the appeal was misconceived, as Order 42 Rule 1 (1) (h) of the Civil Procedure Rules expressly provides that an appeal from a ruling under Order 9 B is as of right. Therefore, the application to discharge the interim stay orders on the ground of want of leave was dismissed as legally untenable.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 11th November, 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL APPEAL 846 OF 2005
NELSON BICHANGA ……………………...…………….. APPELLANT
VERSUS
JOHN MAGWA OBWERE …………………..…..……. RESPONDENT
RULING
In this application dated 11th November, 2005 and brought under Order 50 Rules 1 and 15 (2) of the Civil Procedure Rules and Sections 3 and 63 (e) of the Civil Procedure Act, the Applicant seeks discharge of the exparte interim orders of stay of execution entered in favour of the Respondent.
Among other grounds, the Applicant argues that the Respondent has not obtained leave of the Court to file this appeal in accordance with the mandatory provisions of Order 42 Rule (2) of the Civil Procedure Rules. He submits that an appeal from the Ruling that gave rise to this matter is one which requires leave of the Court, and leave having not been obtained, this appeal is incompetent, and any Orders made pursuant to it are invalid, and ought to be discharged.
Now, the Ruling that gave rise to this Appeal, was in respect of an application to set aside an earlier Order of the lower Court dismissing the application dated 15th August, 2005. That application was made under Order 9 B of the Civil Procedure Rules. Any Appeal arising from a Ruling under Order 9 B aforesaid is as of right and no leave of the Court is required {see Order 42 Rule 1 (1) (h)}.
Accordingly, the Applicant’s argument here that the Respondent required “leave” is completely untenable in law and misconceived, and his application is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 7th day of December, 2006.
ALNASHIR VISRAM
JUDGE