HARBHAJAN SINGH SEMBI vs LAKELAND MOTORS LIMITED & 52 OTHERS [1998] KECA 121 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant was entitled to a stay of the superior court's order of 30th April 1998 pending an intended appeal
- 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.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
#Whether a stay pending appeal could be granted where no leave to appeal had been sought or obtained
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
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.
Whether the ruling of 30th April 1998 covered the applicant's application for review under Order 44 of the Civil Procedure Rules
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
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.
Legal principles established
#- 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
#- 1.The Motion is struck out with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
The Motion is struck out with costs to the respondents
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.
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'
In the result, we think that the Motion before us does not lie and the same is struck out with costs to the respondents.
We understand "other efforts" to include the application for review under order 44.
Issues in the judgment
#The judgment text contains a garbled/corrupted passage where the sentence about unnecessary affidavit material is interrupted by overlapping text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.