[2006] KEHC 2529 (KLR)
The court held that the trial magistrate's endorsement of 'Right of Appeal 28 days' at the end of the ruling constituted a grant of leave to appeal. Since the purpose of leave is to permit an appeal where it is not as of right, and the lower court had already granted this right, there was no requirement for a...
Source-derived case information.
- Citation
- [2006] KEHC 2529 (KLR)
- Parties
- Appellant: Silas Gikundi M’Murithi; Respondent: Stanley Manyara
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; appeal to proceed
- Legal Topics
- Leave to Appeal, Appeal as of Right, Preliminary Objection, Order Xvi Rule 4, Order Xlii Rule 1, Section 75 Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Gikundi M’Murithi
Appellant
Stanley Manyara
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was properly before the court without leave having been sought or granted.
- 2 Whether the trial magistrate's endorsement of 'Right of Appeal 28 days' constituted sufficient leave to appeal.
Ratio Decidendi
The court held that the trial magistrate's endorsement of 'Right of Appeal 28 days' at the end of the ruling constituted a grant of leave to appeal. Since the purpose of leave is to permit an appeal where it is not as of right, and the lower court had already granted this right, there was no requirement for a separate application for leave. Therefore, the preliminary objection that the appeal was improperly before the court for want of leave was without merit and was overruled.
Court Disposition
preliminary objection overruled; appeal to proceed
Orders
- The preliminary objection is overruled.
- The respondent is ordered to reply to the appellant's submissions.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 123 of 2002
SILAS GIKUNDI M’MURITHI ……………………………...……………….. APPLICANT/ APPELLANT
VERSUS
STANLEY MANYARA …………………………………………………………………… RESPONDENT
RULING ON A PRELIMINARY OBJECTION
1. In the cause of the hearing of this appeal, Mr. Riungu raised the point that there was no proper Appeal before court as the Appellant failed to obtain leave before filing the Appeal. He argued that the order appealed from was made under Order XVI Rule 4 of the Civil Procedure Rules and invoking s.75(1) of the Civil Procedure Act as read with Order XLII Rule 1 of the Rules he urged the point that the Appeal was not a matter of right and that since no leave was sought nor granted, the Appeal was improperly before court and should be struck out.
2. Mr. Karuti for the Appellant had a very simple and straight forward answer to the objection; that page 5 of the typed record of the lower court, the learned trial magistrate at the end of his Ruling, subject of Appeal, added these words;
“Right of Appeal 28 ”days. The meaning of these words was that leave to appeal had been granted and no other leave was necessary. He urged that the objection should be disallowed and the Appeal should proceed to finalization.
3. At the time that the objection was raised I noted that if it was allowed then there was no reason to hear the Appeal as it would have to be struck out. I now think that I am persuaded by Mr. Karuti’s response to it.
4. Under s.75(1) of the Civil Procedure Act, an Appeal shall be either as “of right” or “with leave” of either the court appealed to or appealed from. What happened in this case is that the court appealed from, with no prompting of either party granted the Appellant “the right” to appeal and that the right so granted should be exercised within 28 days. That to my mind is sufficient a direction as to be leave and I agree that there was no basis for another Application for leave to be filed when the right to appeal, which is the purpose of leave, had already been granted.
5. I shall overrule the objection, order Mr. Riungu to reply to the submissions on behalf of the Appellant and bring the matter before me to an end.
6. I shall make no order as to costs at this stage. Let any costs abide the Appeal.
7. Orders accordingly.
Dated, signed and delivered in open court at Meru this 2nd Day of March 2006
ISAAC LENAOLA
JUDGE