[2005] KEHC 1758 (KLR)
The court found that the order sought to be reviewed was properly extracted and on file. Although a notice of appeal had been filed, no memorandum of appeal was lodged in accordance with the Court of Appeal Rules, and the period for filing such an appeal had expired. Therefore, there was no valid appeal pending...
Source-derived case information.
- Citation
- [2005] KEHC 1758 (KLR)
- Parties
- Plaintiff: Sheikh Ali Taib; Defendant: George Ellam Wekesa; Interested Party: Selina Wekesa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 260 of 2003
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Interlocutory Applications
- Outcome
- Preliminary objection dismissed; application for review to proceed; leave to file replying affidavit and leave to appeal granted.
- Legal Topics
- Review of Court Orders, Preliminary Objection, Notice of Appeal, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheikh Ali Taib
Plaintiff
George Ellam Wekesa
Defendant
Selina Wekesa
Interested Party
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Interlocutory Applications
Legal Issues
- 1 Whether the preliminary objection to the application for review should be upheld.
- 2 Whether the applicant is entitled to proceed with the Notice of Motion for review of the court order dated 22/4/2005.
Ratio Decidendi
The court found that the order sought to be reviewed was properly extracted and on file. Although a notice of appeal had been filed, no memorandum of appeal was lodged in accordance with the Court of Appeal Rules, and the period for filing such an appeal had expired. Therefore, there was no valid appeal pending before the appellate court. In these circumstances, the preliminary objections raised by the respondents lacked merit and were dismissed. The application for review was allowed to proceed to hearing, and the applicant was granted leave to file a replying affidavit. Leave to appeal was also granted upon oral application by counsel.
Court Disposition
Preliminary objection dismissed; application for review to proceed; leave to file replying affidavit and leave to appeal granted.
Orders
- Preliminary objection by respondents is dismissed.
- Application for review (Notice of Motion) to proceed to hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 260 of 2003
SHEIKH ALI TAIB ……………………………………..….. PLAINTIFF - V E R S U S – GEORGE ELLAM WEKESA ………………….….………DEFENDANT AND SELINA WEKESA ………………………………INTERESTED PARTY
R U L I N G
The applicant filed this Notice of Motion seeking orders for Review of Court Order made on 22/4/2005. The order is extracted and served upon the Respondents. The Notice of Motion is grounded on the new evidence which shows that the property in dispute is not yet transferred to the Plaintiff. The applicant says that the order is extracted as required under Order 44 CPC and that the applicant filed notice of appeal but not the Memorandum of Appeal as per Court of Appeal rules and that the applicant has abandoned the intended appeal. And therefore Preliminary Objection should be dismissed.
I find that the order was extracted and it is in file. I also find that although Notice of Appeal was filed no appeal has been filed in accordance with the Court of Appeal rules and even the period for filing such an appeal has expired . In the circumstances I do not uphold objections raised by both Respondents and the same are dismissed. Application of Notice of Motion to proceed to hearing.
Dated this 15th July 2005.
J. KHAMINWA
JUDGE
15. 7.05
Khaminwa Judge
Court clerk – Winnie
Mr. Kiambiya for plaintiff/respondent – present
Notices already issued.
Ruling on Preliminary Objection read.
J. KHAMINWA
JUDGE
Mr. Kiambaya – l seek leave to file Replying affidavit to the Notice of Motion. Leave granted. Affidavit to be filed within 14 days and other parties at liberty to file response within 7 days of service thereafter.
Mr. Kiambiya application for leave to appeal.
Court – leave granted.
Certified copies of proceedings and ruling to be supplied on payment of copying charges.
J. KHAMINWA
JUDGE