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Court of AppealStruck OutCivil Application No. Nai. 108 of 1998

HARBHAJAN SINGH SEMBI vs LAKELAND MOTORS LIMITED & 52 OTHERS [1998] KECA 121 (KLR)

Court of Appeal of Kenya
4 December 1998
639 words in judgment
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AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a stay application because the applicant never obtained the leave to appeal required by section 75 of the Civil Procedure Act.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Gicheru, Omolo and Owuor, JJ.A) delivered on 4th December 1998 in Civil Application No. Nai. 108 of 1998. The applicant, Harbhajan Singh Sembi, moved the Court under Rules 5(2), 19, 42, 43, 45, 49 and 52 of the Court of Appeal Rules for two orders: a stay of the High Court at Kisumu (Wambilyangah, J) order made on 30th April 1998 in H.C.C.C No. 227 of 1997 pending an intended appeal, and a mandatory injunction requiring the interested party to deposit the approval of the statements of sale and Ksh.10,937,810.00 in court. The court observed that counsel's filings - a record of over 230 pages and a 47-paragraph affidavit - had obscured an otherwise simple application. Relying on its own earlier ruling of 15th May 1998 striking out a similar application by Alfred Okuna and 3 others, the court held that no leave to appeal under section 75 of the Civil Procedure Act had been sought or obtained; without such leave no appeal lay, and consequently no stay pending appeal could be granted. The applicant's argument that the 30th April 1998 ruling also covered his review application under Order 44 of the Civil Procedure Rules failed, the court finding that the learned Judge never dealt with the review application and that his remark that the orders rendered 'other efforts totally futile and unnecessary' embraced it. The Motion was struck out with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicant was entitled to a stay of the superior court's order of 30th April 1998 pending an intended appeal
  2. 2.Whether a mandatory injunction should issue directing the interested party to deposit the approval of the statements of sale and Ksh.10,937,810.00 in court
  3. 3.Whether an appeal lay at all, given that no leave to appeal under section 75 of the Civil Procedure Act had been obtained

Key legal issues

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01

Whether a stay pending appeal could be granted where no leave to appeal had been sought or obtained

Holding

The Motion was struck out because, without the requisite leave under section 75 of the Civil Procedure Act, no appeal lay and therefore no stay pending appeal was available

Reasoning

The court adopted the reasoning in its earlier ruling of 15th May 1998 striking out a similar application by Alfred Okuna and 3 others, which held that the notice of appeal was restricted to the decision that Sembi be paid Ksh.4,000,000, that leave under section 75 of the Civil Procedure Act was necessary, and that in its absence no appeal and no stay pending appeal could lie. The applicant's contention that the ruling also covered a review application under Order 44 failed because the learned Judge did not deal with the review application, his orders rendering 'other efforts' futile.

p. 2
02

Whether the ruling of 30th April 1998 covered the applicant's application for review under Order 44 of the Civil Procedure Rules

Holding

The court held that although a review application was before the superior court, the learned Judge did not deal with it; his statement that the orders rendered 'other efforts' totally futile was understood to include the review application

Reasoning

Mr. Kasamani argued that the ruling of 30th April 1998 covered the review application under Order 44, obviating the need for leave to appeal. The court accepted that a review application existed but noted the Judge never dealt with it. Reading the Judge's closing statement that 'These orders render other efforts totally futile and unnecessary', the court understood 'other efforts' to include the Order 44 review, consistent with the view taken in the earlier striking-out application.

p. 2

Legal principles established

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  • Where leave to appeal is required under section 75 of the Civil Procedure Act and has not been obtained, no appeal lies to the Court of Appeal and there can be no stay pending appeal

Court orders

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  1. 1.The Motion is struck out with costs to the respondents

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C No. 227 of 1997 and H.C.C.C No. 45 of 1998
Jurisdiction invoked
Rules 5(2), 19, 42, 43, 45, 49 & 52 of the Court of Appeal Rules

Relief refused

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Stay of the superior court's order of 30th April 1998 pending intended appeal

No leave to appeal under section 75 of the Civil Procedure Act had been obtained, so no appeal lay and consequently no stay pending appeal could issue

p. 2

Mandatory injunction directing the interested party to deposit the approval of the statements of sale and Ksh.10,937,810.00 in court

The Motion did not lie and was struck out in its entirety

p. 2

Costs

The Motion is struck out with costs to the respondents

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.

It is not in dispute that no leave to appeal was sought. Such leave is necessary under section 75 of the Civil Procedure Act. As no such leave has been obtained, no appeals lies to this Court, and therefore, quite clearly there can be no stay pending `appeal'
p. 2Leave to appeal as a precondition to stay pending appeal
In the result, we think that the Motion before us does not lie and the same is struck out with costs to the respondents.
p. 2Final orders - striking out of the Motion
We understand "other efforts" to include the application for review under order 44.
p. 2Scope of the superior court's ruling of 30th April 1998

Issues in the judgment

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minor

The judgment text contains a garbled/corrupted passage where the sentence about unnecessary affidavit material is interrupted by overlapping text

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, "HARBHAJAN SINGH SEMBI vs LAKELAND MOTORS LIMITED & 52 OTHERS [1998] KECA 121 (KLR)", Case Analysis (1998). Civil Application No. Nai. 108 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/121/eng@1998-12-04

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