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Court of AppealStruck OutCivil Appeal No. 92 of 1989· [1995] KECA 112 (KLR)

CORNELIUS K. BIRGEN vs KIPRONO A. MASAI [1995] KECA 112 (KLR)

Court of Appeal
5 October 1995
JGJ. E. GicheruAAA. M. AkiwumiALA. A. Lakha
201 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a High Court decision that it lacked jurisdiction, because that decision is an order, not a decree.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi striking out Civil Appeal No. 92 of 1989 brought by Cornelius K. Birgen against Kiprono A. Masai. The appeal was lodged against a judgment and decree of the High Court of Kenya at Nairobi (Lady Justice Effie Awuor) dated 13th June 1988 in H.C.C.C. No. 402 of 1985. The Court of Appeal held that the decision appealed against did no more than decide that the superior court had no jurisdiction to entertain the appeal filed before it. Because it did not seek conclusively to determine the rights of the parties, it did not give rise to a decree within the meaning of s.2 of the Civil Procedure Act; at best it gave rise to an order. Under s.75(2) of the Civil Procedure Act no appeal lies from an order made in appeal by the superior court. Accordingly, no appeal lay to the Court of Appeal and the appeal was struck out with costs to the respondent. The ruling was delivered on 5th October 1995 by Gicheru, Akiwumi and Lakha, JJ.A., as a single judgment of the whole court. The judgment establishes as a binding proposition that jurisdictional rulings of the High Court in appellate matters, being orders rather than decrees, are not appealable to the Court of Appeal under s.75(2) of the Civil Procedure Act.

Key legal issues

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01

Whether the judgment appealed against constituted a decree capable of supporting an appeal to the Court of Appeal

Holding

It did not; it merely decided a jurisdictional question, determined no rights conclusively, and amounted at best to an order, from which no appeal lies under s.75(2)

Reasoning

The High Court judgment under attack decided only that the superior court lacked jurisdiction to entertain the appeal before it. Because it did not conclusively determine the parties' rights, it did not produce a decree as defined by s.2 of the Civil Procedure Act; at best it produced an order. Since s.75(2) provides no right of appeal from an order made in appeal by the superior court, the further appeal to the Court of Appeal was incompetent and had to be struck out.

p. 2

Legal principles established

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  • A decision by the High Court that it has no jurisdiction to entertain an appeal is not a decree within s.2 of the Civil Procedure Act; it is at best an order, and no appeal lies to the Court of Appeal under s.75(2) from such an order.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 402 of 1985
Jurisdiction invoked
Appeal under the Civil Procedure Act, Cap 32; court considered ss. 2 and 75(2) of the Civil Procedure Act

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, "CORNELIUS K. BIRGEN vs KIPRONO A. MASAI [1995] KECA 112 (KLR)", Case Analysis (1995). Civil Appeal No. 92 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/112/eng@1995-10-05

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