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Court of AppealStruck OutNot stated in the judgment· [1988] KECA 110 (KLR)

Luvonga v Luvonga (Civil Appeal 90 of 1987) [1988] KECA 110 (KLR)

Court of Appeal of Kenya
2 December 1988
JNJ.O. NyarangiJMJ.R.O. MasimeRKR.O. Kwach
393 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that some High Court appeal decisions are final by law, so appealing further wastes money and loses costs.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu by Imbusi Luvonga against his brother Pamba Luvonga, concerning land originally litigated in Lurambi African Court case number 81 of 1960, taken over and determined by the third-class magistrate of the Butali District Court in the appellant's favour. Pamba Luvonga's appeal to the Resident Magistrate at Kakamega was dismissed on May 13, 1971, upholding the District Magistrate's decision. The appellant nonetheless appealed to the High Court, arguing that the Resident Magistrate failed to consider that the land had been the subject of prior court proceedings and had overlooked documentary evidence. The sole question before the Court of Appeal was whether a further appeal lay to it. The court, per the judgment of Nyarangi, Masime and Kwach (Ag) JJA, examined section 71A(1) and (2) of the Civil Procedure Act, which permits an appeal to the High Court from a first-class subordinate court decree on appeal from a third-class subordinate court on a question of law only, and makes such an appeal final. Since the appeal to the High Court was on a question of law only and was in law final, no further appeal lay to the Court of Appeal. The court held the appeal incompetent and struck it out with costs. The High Court decision was not disturbed on the merits.

Key legal issues

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01

Whether a further appeal lies to the Court of Appeal against a High Court decision on a first-class subordinate court appeal from a third-class subordinate court

Holding

No further appeal lies; the appeal under section 71A(2) is final and the appeal to the Court of Appeal is incompetent

Reasoning

Section 71A(1) of the Civil Procedure Act permits an appeal to the High Court from a decree of a first-class subordinate court on appeal from a third-class subordinate court, on a question of law only. Section 71A(2) makes such an appeal final. The appeal to the High Court was on a question of law only, as the Resident Magistrate held. Being final in law, no second appeal lay to the Court of Appeal, rendering the present appeal incompetent and liable to be struck out.

p. 2

Legal principles established

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  • An appeal to the High Court from a subordinate court of the first class on an appeal from a subordinate court of the third class, on a question of law only, is final and no further appeal lies to the Court of Appeal

Court orders

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  1. 1.The appeal is struck out with costs
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Section 71A(1) and (2) of the Civil Procedure Act - whether a further appeal lies to the Court of Appeal from a second appeal decided by the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Luvonga v Luvonga (Civil Appeal 90 of 1987) [1988] KECA 110 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/110/eng@1988-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.