ANDREW KIMANI NGUMBA & ANOTHER vs ZAKARIA MUIGAI GAKIBE [1997] KECA 382 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because no leave to appeal had been obtained, confirming that Land Control Act time-extension orders are not appealable as of right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies as of right, without leave, from an order of the High Court extending time under section 8 of the Land Control Act (Cap 302)
- 2.Whether the order of 10 November 1995 was a final order/decree conclusively determining the rights of the parties within Order XLII rule 3 and the definition of 'decree' in section 2 of the Civil Procedure Act
- 3.Whether the appeal should be struck out for want of leave
Key legal issues
#Whether an order extending time under section 8 of the Land Control Act is appealable as of right
No. Only orders made under the Civil Procedure Rules can be made appealable by Order XLII; an order made under the Land Control Act falls outside that scheme and requires leave.
Section 75(1)(h) of the Civil Procedure Act allows appeal as of right only from orders made under rules from which an appeal is expressly allowed by rules. Order XLII rule 1(1) lists 31 appealable orders, all made under the Rules, and rule 2 covers only 'other order[s] made under these Rules'. An order under section 8 of the Land Control Act is not made under the Rules, so it is not appealable without leave.
Whether the order was a final order determining the rights of the parties
No. The order merely extended time to apply for land control consent and regulated procedure; it did not conclusively determine the substantial rights claimed in the pleadings.
Relying on the Privy Council in Tzamburakis v Rodoussakis, the court held that 'rights' in the definition of decree means substantial rights for which relief is sought. Decisions on limitation, jurisdiction, procedure or evidence are means to an end and cannot found a decree. The order extending time did not finally dispose of the rights claimed in the pleadings.
Legal principles established
#- An order made under section 8 of the Land Control Act is not an order made under the Civil Procedure Rules and is therefore not appealable as of right under section 75(1)(h) of the Civil Procedure Act or Order XLII of the Civil Procedure Rules; leave is required.
- The term 'decree' in section 2 of the Civil Procedure Act must be given a limited construction: a decision that only regulates procedure or evidence and does not determine the substantial rights of the parties is not a decree and is not final.
- A decree must completely dispose of the suit; a finding that does not determine any substantial right cannot give rise to a decree and is not final.
Court orders
#- 1.The respondent's notice of motion dated May 12, 1997 is granted as prayed
- 2.The appeal is declared incompetent and struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1850 of 1993
- Jurisdiction invoked
- Sections 75 and 76 of the Civil Procedure Act (Cap 21) and Order XLII of the Civil Procedure Rules; Rule 80 of the Court of Appeal Rules (motion to strike out)
Relief refused
#The appellants' attempt to prosecute the appeal without leave
The order appealed against was not appealable as of right; leave was refused by the High Court and none was sought or granted by the Court of Appeal
Costs
The appeal was struck out with costs (costs to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly and, for the reasons above stated, the decision of the superior court from which it is sought to appeal is an order from which no appeal lies without leave.
Leave to appeal not having been obtained the appeal is incompetent and must be, as it hereby is, struck out with costs.
It follows that unless the order is made under the Civil Procedure Rules those Rules cannot be effective to make it appealable, either as of right or with leave.
A decree, in our judgment, must completely dispose of the suit and the definition limits the point of decision to matters which determine the rights of the parties.
Issues in the judgment
#The judgment records Mr. Gatonye as counsel for the appellant in the heading of the argument but later refers to 'Mr. Gatonye for the respondent', an apparent internal inconsistency in party attribution.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ANDREW KIMANI NGUMBA & ANOTHER vs ZAKARIA MUIGAI GAKIBE [1997] KECA 382 (KLR)", Case Analysis (1997). Civil Appeal No. 199 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/382/eng@1997-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.