[1997] KECA 186 (KLR)
The court held that the application before the High Court was essentially to set aside a consent order, and such an application does not lie under any provision of the Civil Procedure Rules. In accordance with section 75 of the Civil Procedure Act, leave to appeal is required from an order arising from such an...
Source-derived case information.
- Citation
- [1997] KECA 186 (KLR)
- Parties
- Applicant: Ramzan Abdul Dhanji; Respondent: The Union Insurance Company of Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 101 of 1997
- Procedural Posture
- Civil Application / Application to Strike Out Appeal
- Outcome
- Appeal struck out for want of leave to appeal.
- Legal Topics
- Leave to Appeal, Consent Orders, Striking Out Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramzan Abdul Dhanji
Applicant
The Union Insurance Company of Kenya Limited
Respondent
Procedural Posture
Civil Application / Application to Strike Out Appeal
Legal Issues
- 1 Whether leave to appeal was required from the order sought to be appealed against.
- 2 Whether the appeal was competent in the absence of leave to appeal.
- 3 Whether the application to set aside a consent order lies under the Civil Procedure Rules.
Ratio Decidendi
The court held that the application before the High Court was essentially to set aside a consent order, and such an application does not lie under any provision of the Civil Procedure Rules. In accordance with section 75 of the Civil Procedure Act, leave to appeal is required from an order arising from such an application. Since it was not in dispute that leave to appeal had neither been sought nor granted, no appeal lay to the Court of Appeal. Consequently, the application to strike out the appeal succeeded, and the appeal was ordered struck out with costs.
Court Disposition
Appeal struck out for want of leave to appeal.
Orders
- Civil Appeal No. 172 of 1996 is struck out with costs.
- The application to strike out the appeal is granted with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CIVIL APPLICATION NO. NAI. 101 OF 1997
BETWEEN
RAMZAN ABDUL DHANJI ................................................................. APPLICANT
AND
THE UNION INSURANCE COMPANY OF KENYA LIMITED .......... RESPONDENT
RULING OF THE COURT
This is an application by the respondent under rule 80 of the Rules of this Court to strike out Civil Appeal No. 172 of 1996 on the ground that the said appeal is against an order from which leave is required to appeal and it is not in dispute that such leave was neither sought nor granted. The application giving rise to the decision from which it is intended to appeal was made for stay of execution and to set aside the judgment of 10th January, 1996. By an oral application the respondent applied to add a prayer to set aside the consent order of 21st November, 1995. The first prayer was under Order XX1 r. 22 in respect of which an appeal can only lie with leave. Once the prayer to set aside the consent order was also included the application to set aside the judgment of 10th January, 1996, the latter was overtaken and indeed the setting aside of the consent order became the crux of the application. The judgment, after all, was only consequential to the consent order. Indeed, the learned judge was alive to this position as he stated in his ruling as follows:-
"At the outset it should be noticed that the judgment in the case was as written by Kuloba, J. after the plaintiff's receiving evidence. The basic question raised by the present application is whether the consent order by which the proceedings in the suit were stayed pending arbitration according to the arbitration clause in the contract between the parties should have been vacated or set aside". We agree. That being the correct position, the application was to set aside the consent order. Such an application doe snot lie under any provisions of the Civil Procedure Rules and in accordance with S.75 of the Civil Procedure Act leave to appeal is required from the order for such an application. If, as is cited at the head of the Chamber Summons, S 3A of the Civil Procedure Act applied then also leave is required. It follows that leave not having been sought or granted no appeal lies. Accordingly, the application succeeds and is granted as prayed with costs. The appeal No. 172 of 1996 is, therefore, ordered to be struck out also with costs.
Made and delivered at Kisumu this 18th day of June, 1997.
R.S.C. OMOLO
................
JUDGE OF APPEAL
A.A. LAKHA
................
JUDGE OF APPEAL
S.E.O. BOSIRE
.................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR