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Court of AppealStruck OutCivil Appeal No. 247 of 1996

STEPHEN MURERWA ARACHI vs NTIBUKA M'MUCHEKE [1997] KECA 208 (KLR)

Court of Appeal
31 October 1997
Philip Kiptoo TunoiP. K. TunoiASA. B. ShahGPG. S. Pall
1,550 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal to it from a High Court decision made in a first appeal under section 75 of the Civil Procedure Act.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nyeri by Stephen Murerwa Arachi, the younger son of the first defendant, against the ruling and order of the High Court at Meru (Ong'udi, J.) dated 24 July 1995 in H.C.C. Appeal No. 17 of 1993. The underlying dispute concerned land parcel Ntima/Igoki/3558, which the respondent claimed the first defendant held 1½ acres of in trust for her, having been given to her by her father in 1955. The dispute was referred to a panel of elders chaired by the District Officer, whose award in the respondent's favour was entered as judgment on 3 November 1989. After the defendants failed in successive attempts to set aside the award and judgment, the appellant, to whom the second defendant had gifted the disputed portion Ntima/Igoki/3557 during the pendency of the suit, sought to be joined as third defendant and to have the award reviewed or set aside; the magistrate dismissed the motion on 10 March 1993, finding fraud in the transfer, and the High Court dismissed the appellant's appeal. The Court of Appeal held that although the appellant had a right of first appeal to the High Court under Order 42 rule 1(1)(aa) and section 75(1)(h) of the Civil Procedure Act, section 75(2) barred any appeal from an order passed in appeal. The Court accordingly struck out the appeal as incompetent with costs to the respondent. The binding proposition is that no second appeal lies to the Court of Appeal from an order passed in a first appeal under section 75.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant had a right of appeal to the Court of Appeal from an order passed in appeal under section 75 of the Civil Procedure Act

Key legal issues

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01

Whether an appeal lies to the Court of Appeal from an order passed in appeal under section 75 of the Civil Procedure Act

Holding

No such appeal lies; the appeal is incompetent and must be struck out.

Reasoning

While Order 42 rule 1(1)(aa) of the Civil Procedure Rules and section 75(1)(h) of the Civil Procedure Act gave the appellant a right of first appeal to the High Court from the magistrate's order under Order 44 rule 3, section 75(2) of the Act expressly prohibits a further appeal from any order passed in appeal. The appellant's second appeal therefore offended the statutory bar and the Court struck it out with costs.

p. 3

Legal principles established

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  • No appeal lies to the Court of Appeal from an order passed in a first appeal under section 75 of the Civil Procedure Act; such an appeal is incompetent.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
AS
majority
GP
majority
On appeal from
High Court of Kenya at Meru
H.C.C. Appeal No. 17 of 1993
Jurisdiction invoked
Section 75 of the Civil Procedure Act; the Court held no second appeal lies from an order passed in appeal under section 75(2)

Relief refused

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The appellant's appeal to the Court of Appeal against the High Court's dismissal of his appeal from the magistrate's refusal to review or set aside the award

Section 75(2) of the Civil Procedure Act bars an appeal from any order passed in appeal

p. 3

Costs

The appeal was struck out with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

But does he have the right to appeal to this Court from an order passed in appeal under section 75 of the said Act? The answer is no.
p. 3Jurisdictional bar on second appeals from orders passed in appeal
Section 75 (2) prescribes that no appeal shall lie from any order passed in appeal. We therefore hold that this appeal is incompetent. We accordingly strike it out with costs to the respondent.
p. 3Final orders - appeal struck out

Issues in the judgment

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minor

The judgment refers to the appellant's motion as brought under 'O.44 rr. 1 and 2' but elsewhere states the magistrate dismissed the application for review 'under O.44 rule 3'; the appealability analysis rests on Order 44 rule 3.

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, "STEPHEN MURERWA ARACHI vs NTIBUKA M'MUCHEKE [1997] KECA 208 (KLR)", Case Analysis (1997). Civil Appeal No. 247 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/208/eng@1997-10-31

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