Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. 30 of 1995

Carmella Wathugu Karigaca v Mary Nyokabi Karigaca

Court of Appeal
29 April 1997
814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal because leave to appeal was filed late, confirming the 14-day rule is strict and jurisdictional.

What this practically means

#

Executive summary

#
This Court of Appeal ruling at Nairobi (Tunoi, Lakha and Pall, JJ.A.) dealt with a preliminary question of jurisdiction in an appeal by Carmella Wathugu Karigaca against a High Court ruling by Aluoch, J. dated 18th November 1993, which had granted the respondent, Mary Nyokabi Karigaca, one half share of land known as L.R. 1159/94 Karen under section 26 of the Law of Succession Act and Rule 45(1) of the Probate and Administration Rules. The respondent moved to strike out the appeal on the ground that leave to appeal had been obtained out of time. The appellant relied on an earlier decision of a single Judge of the Court of Appeal holding that rule 39 of the Court of Appeal Rules could not override section 75 of the Civil Procedure Act, which fixes no time limit for applying for leave. The full Court held there was no conflict between the two provisions: section 75 is silent on the period, and rule 39(1) validly prescribes 14 days under section 5 of the Appellate Jurisdiction Act. Neither section 95 of the Civil Procedure Act nor Order XLIX rule 5 empowered the superior court to extend a period fixed by the Court of Appeal Rules, nor could extension be implied. Whether leave is validly granted is a question of jurisdiction that cannot be conferred by consent or default and may be raised by the court sua sponte; an erroneous decision on jurisdiction does not operate as res judicata, so the Court was not bound by the single Judge's ruling. The Notice of Motion was allowed and the appeal struck out with costs to the respondent.

Questions the Court framed

#

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

  1. 1.Whether leave to appeal to the Court of Appeal was validly granted, having regard to the time within which the application for leave should have been made
  2. 2.Whether there is a conflict between section 75 of the Civil Procedure Act and rule 39(1) of the Rules of this Court
  3. 3.Whether the superior court could extend time or grant leave by implication
  4. 4.Whether the court is bound by the earlier decision of a single Judge of the Court of Appeal in the same appeal

Key legal issues

#
01

Time limit for applying for leave to appeal to the Court of Appeal

Holding

There is no conflict between section 75 of the Civil Procedure Act and rule 39(1) of the Court of Appeal Rules; the Act is silent on the period and the Rule does not override it, so leave must be sought within the 14 days prescribed by the Rule

Reasoning

The court held the two provisions are compatible: section 75 fixes no time limit, while rule 39(1) prescribes 14 days. Section 5 of the Appellate Jurisdiction Act empowers the Rules to govern procedure in the superior court on matters connected with appeals, so the Rule validly fixes the period.

p. 2
02

Power of the superior court to extend time fixed by the Court of Appeal Rules

Holding

Neither section 95 of the Civil Procedure Act nor Order XLIX rule 5 of the Civil Procedure Rules empowers the superior court to extend a period fixed by the Rules of this Court, nor can extension be implied from the grant of leave

Reasoning

The court reasoned that the extension provisions of the Civil Procedure Act and Rules do not reach periods fixed by the Court of Appeal Rules, and the superior court has no such power, so no extension could be construed as granted by implication when leave was given.

p. 2
03

Effect of an earlier erroneous decision of a single Judge on jurisdiction

Holding

The court is not bound by the single Judge's decision; an erroneous assumption of jurisdiction cannot operate as res judicata

Reasoning

Relying on Sarkar's Law of Civil Procedure, the court held that a question of jurisdiction cannot be finally determined by an erroneous decision; an erroneous interpretation conferring or denying jurisdiction cannot operate as res judicata between the same parties, so the single Judge's ruling did not bind the full Court.

p. 2

Legal principles established

#
  • Whether leave to appeal has been validly granted is a question of jurisdiction which cannot be conferred by consent or default, and the court may take cognisance of it sua sponte
  • An erroneous decision on jurisdiction does not operate as res judicata and does not bind the court
  • A party cannot rely on leave obtained in plain defiance of the Rules; leave declared invalid for being out of time means the Court's jurisdiction has not been validly invoked

Court orders

#
  1. 1.The Notice of Motion dated 19th May, 1994 is allowed
  2. 2.The appeal is struck out with costs to the respondent

The bench

#

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.Succ.C No. 1421 of 1991
Jurisdiction invoked
Leave to appeal under section 75 of the Civil Procedure Act, rule 39(1) of the Court of Appeal Rules and section 5 of the Appellate Jurisdiction Act (Cap. 9)

Relief refused

#

The appellant's appeal against the High Court ruling of 18th November 1993

The leave relied on was invalidly obtained out of time, so the jurisdiction of the Court was never validly invoked

p. 2

Costs

The appeal is struck out with 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.

Whether leave to appeal to this Court has been validly granted or not is a matter of jurisdiction which cannot be conferred on this Court by consent or default.
p. 2Jurisdiction cannot be conferred by consent or default
A question of jurisdiction is, however, a matter of which the court can and should take cognisance whether or not the matter is raised in argument.
p. 2Sua sponte cognisance of jurisdiction
A party cannot rely on leave which is in plain defiance of the Rules.
p. 2Invalid leave cannot found jurisdiction
The appeal, therefore, must be as it hereby is, struck out with costs to the respondent.
p. 2Final orders - appeal struck out with costs

Issues in the judgment

#
minor

Judgment refers to a single Judge's decision 'delivered on 9th October, 1996' while the appeal for leave was granted on 3rd June, 1994 - the later date appears chronologically inconsistent

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Carmella Wathugu Karigaca v Mary Nyokabi Karigaca", Case Analysis (1997). Civil Appeal No. 30 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/419/eng@1997-04-29

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