Carmella Wathugu Karigaca v Mary Nyokabi Karigaca
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether there is a conflict between section 75 of the Civil Procedure Act and rule 39(1) of the Rules of this Court
- 3.Whether the superior court could extend time or grant leave by implication
- 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
#Time limit for applying for leave to appeal to the Court of Appeal
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
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.
Power of the superior court to extend time fixed by the Court of Appeal Rules
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
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.
Effect of an earlier erroneous decision of a single Judge on jurisdiction
The court is not bound by the single Judge's decision; an erroneous assumption of jurisdiction cannot operate as res judicata
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.
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.The Notice of Motion dated 19th May, 1994 is allowed
- 2.The appeal is struck out with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
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.
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.
A party cannot rely on leave which is in plain defiance of the Rules.
The appeal, therefore, must be as it hereby is, struck out with costs to the respondent.
Issues in the judgment
#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.