[2008] KEHC 1319 (KLR)
The court found that the applicant failed to demonstrate sufficient grounds to warrant the exercise of judicial discretion in their favour for leave to appeal. The application for leave was brought with inordinate delay, approximately two weeks after the ruling, without adequate justification. The applicant's...
Source-derived case information.
- Citation
- [2008] KEHC 1319 (KLR)
- Parties
- Plaintiff: Tulip Properties Limited; 1st Defendant: Mohamed Koriow Nur; 2nd Defendant: Simon Kiprono Laboso; 3rd Defendant: Macdonald Lijoodi Maraka; 4th Defendant: Noor Mohamed Hassan; Defendant: David Mwenje; Defendant: The Commissioner of Lands; Defendant: The Registrar of Titles
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1403 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Application for Leave to Appeal Interlocutory Order
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Leave to Appeal, Interlocutory Orders, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tulip Properties Limited
Plaintiff
Mohamed Koriow Nur
1st Defendant
Simon Kiprono Laboso
2nd Defendant
Macdonald Lijoodi Maraka
3rd Defendant
Noor Mohamed Hassan
4th Defendant
David Mwenje
Defendant
The Commissioner of Lands
Defendant
The Registrar of Titles
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Leave to Appeal Interlocutory Order
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal against the interlocutory ruling delivered on 3rd October 2008.
- 2 Whether the delay in bringing the application for leave to appeal was inordinate and justified.
- 3 Whether the court should exercise its discretion to grant leave to appeal in the circumstances.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient grounds to warrant the exercise of judicial discretion in their favour for leave to appeal. The application for leave was brought with inordinate delay, approximately two weeks after the ruling, without adequate justification. The applicant's explanation that instructions to appeal were received late and that a notice of appeal had already been filed was not persuasive, especially since a notice of appeal filed before leave is granted is incompetent. The court emphasized that there is no automatic right to appeal interlocutory orders and that the applicant did not place enough material before the court to justify the...
Court Disposition
application dismissed
Orders
- The application for leave to appeal is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
ELC Case 1403 of 2007
TULIP PROPERTIES LIMITED……...............……………………...PLAINTIFF
VERSUS
MOHAMED KORIOW NUR
SIMON KIPRONO LABOSO
MACDONALD LIJOODI MARAKA
NOOR MOHAMED HASSAN………………...…………….1ST DEFENDANT
DAVID MWENJE……………………………………………2ND DEFENDANT
THE COMMISSIONER OF LANDS………....…………….3RD DEFENDANT
THE REGISTRAR OF TITLES……..……………………..4TH DEFENDANT
R U L I N G
Before me is a Notice of Motion brought by the 1st Defendant seeking leave to appeal against the ruling of this court which was delivered on 3rd October 2008. The application is based on the grounds as stated on the body of the Notice of Motion and supported by an affidavit sworn by Karen Mate learned Counsel for the Applicant. What is sought is a judicial discretion. For proper administration of justice such an application for leave to appeal against an interlocutory order ought to be made immediately after the delivery of the ruling or at most soon thereafter.
The ruling was delivered on 3rd October 2008 and the Applicant did not show any indication that he intended to apply for leave to appeal against the said ruling. She participated in selecting the next date for further hearing of the suit which was agreed by all counsel to be suitable for their diaries and they all agreed by consent that PW1 be availed for further examination in chief on 22nd October 2008.
This application was brought on 16th October 2008 under certificate of urgency which is about 2 weeks later. This is obviously inordinate delay. Counsel for the Applicant submitted that after the ruling was delivered she had not received instructions to appeal against the ruling and by the time the instructions were received time to appeal was running out and delay was caused due to preparation of the Notice of Appeal which has already been filed. With due respect to counsel an appeal or notice of appeal filed before leave was granted is incompetent.
It is conceded by counsel and rightly so that there is no automatic right to appeal. It is now settled that the decision whether or not to grant leave to appeal is essentially discretionary.
The Applicant has clearly not placed sufficient material before me to enable me exercise my unfettered discretion in their favour. In the result I dismiss the application with no order as to costs.
Dated and delivered at Nairobi this 22nd day of October 2008.
J. L. A. OSIEMO
JUDGE