[2019] KEHC 10945 (KLR)
The court found that the application for leave to appeal was made within the prescribed time under Order 43 Rule 1(3) of the Civil Procedure Rules. The court emphasized that leave to appeal is a constitutional right and should not ordinarily be denied. Since the application was undefended and complied with...
Source-derived case information.
- Citation
- [2019] KEHC 10945 (KLR)
- Parties
- Applicant: Thomas K’Bahati t/a K’Bahati & Co. Advocates; Respondent: Lizzie Muthoni Wanyoike
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 93 of 2016
- Procedural Posture
- Miscellaneous Application / Application for Leave to Appeal
- Outcome
- Leave to appeal granted. No order as to costs.
- Judges
- A Ali-Aroni
- Legal Topics
- Leave to Appeal, Taxation of Costs, Advocate Client Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas K’Bahati t/a K’Bahati & Co. Advocates
Applicant
Lizzie Muthoni Wanyoike
Respondent
Procedural Posture
Miscellaneous Application / Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to appeal against the ruling and order made on 20th April 2018.
- 2 Whether the application for leave to appeal was made within the prescribed time under Order 43 Rule 1(3) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for leave to appeal was made within the prescribed time under Order 43 Rule 1(3) of the Civil Procedure Rules. The court emphasized that leave to appeal is a constitutional right and should not ordinarily be denied. Since the application was undefended and complied with procedural requirements, the court granted leave to appeal and ordered that the appeal be filed within 30 days. No order as to costs was made due to the lack of opposition.
Court Disposition
Leave to appeal granted. No order as to costs.
Orders
- Leave to appeal is granted.
- Appeal to be filed within the next 30 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC. APPLICATION NO. 93 OF 2016
IN THE MATTER OF: THE ADVOCATE ACT CAP 16, LAWS OF KENYA
AND
IN THE MATTER OF: TAXATION OF COSTS BETWEEN ADVOCATE & CLIENT
BETWEEN
THOMAS K’BAHATI T/A K’BAHATI & CO. ADVOCATES....ADVOCATE/APPLICANT
VERSUS
LIZZIE MUTHONI WANYOIKE
IN THE MATTER OF THE ESTATE OF TERESIA KABURA KAMAU ARISING FROM
SUCCESSION CAUSE NO. 64 OF 2010
IN THE MATTER OF THE ESTATE OF JOSPHAT MBURU WANYOIKE (DECEASED)
R U L I N G
1. Before court is an application dated 2nd of May 2018 filed in court on 3rd of May 2018, seeking for leave to appeal against the ruling and order made by this court on 20th April 2018.
2. Order 43 Rule 1(3)of theCivil Procedure Rules requires such an application if not orally made at the time the order is issued the same be made within 14 days.
3. The application which remains undefended seeks leave to file an appeal and indeed leave to appeal ought not to be denied ordinarily as the same is constitutionally granted.
4. Consequently, therefore leave be and is hereby granted. Appeal be filed within the next 30 days.
5. And since application is undefended there will be no order as to costs.
DATED, SIGNEDandDELIVEREDat NAIROBI this 31ST DAY OF JANUARY, 2019.
.....................
ALI-ARONI
JUDGE