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Court of AppealStruck OutCivil Appeal No. 215 of 1999

Samuel Ndura Kanyara v Mary Njambi [2001] KECA 293 (KLR)

Court of Appeal
26 September 2001
245 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellant lacked proper leave and left the key order out of the appeal record.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nakuru disposed of Civil Appeal No. 215 of 1999, in which Samuel Ndura Kanyara appealed against an order of the High Court of Kenya at Eldoret (Anganyanya J) dated 3rd February 1994 in H.C.C. Appeal No. 152 of 1993. The appeal came before Gicheru, Lakha and Ole Keiwua, Judges of Appeal, on an application by counsel for the respondent, Mary Njambi, that the appeal be struck out on two grounds: first, that the order appealed from was not included in the record of appeal; and secondly, that the appeal had been brought without leave, the application for leave having been made outside the fourteen days allowed for that purpose. The court agreed with both objections. It found that the order appealed from was not in the record of appeal. It further found that the appellant did not have leave of the superior court to appeal: his application for leave dated 29th June 1994 had not been granted by the learned Judge, who instead enlarged time within which to appeal. The enlargement of time was thus no substitute for the grant of leave. Upholding the objection, the court struck out the appeal as incompetent and made no order as to costs. The order of Anganyanya J was left undisturbed, the appeal having been disposed of on procedural grounds without any consideration of the merits. The ruling confirms two propositions of general application: that an appeal in which the order appealed from is omitted from the record of appeal is incompetent, and that an enlargement of time within which to appeal does not amount to leave to appeal, so that an appeal prosecuted without the required leave is liable to be struck out.

Questions the Court framed

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

  1. 1.Whether the order appealed from was included in the record of appeal
  2. 2.Whether the appellant had leave of the superior court to appeal, his application for leave dated June 29, 1994 having been made outside the fourteen days allowed and not granted, the learned Judge instead enlarging time within which to appeal
  3. 3.Whether the appeal should be struck out as incompetent

Key legal issues

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01

Whether an appeal is incompetent where the order appealed from is not included in the record of appeal

Holding

Yes. The court agreed with the respondent's objection that the omission of the order appealed from from the record of appeal was a ground for striking out the appeal, and treated it, together with the want of leave, as rendering the appeal incompetent.

Reasoning

Counsel for the respondent applied to strike out the appeal on two grounds: that the order appealed from was not included in the record of appeal, and that the appeal had been brought without leave, the application for leave having been made outside the fourteen days allowed. The court examined the record and agreed that the order appealed from was not in it. Treating that omission, together with the absence of leave, as rendering the appeal incompetent, the court upheld the objection and struck the appeal out with no order as to costs.

p. 2
02

Whether an appeal brought without the leave of the superior court is competent where the application for leave was made out of time and the judge enlarged time instead of granting leave

Holding

No. The appellant did not have leave to appeal: his application for leave dated June 29, 1994 was not granted; the learned Judge instead enlarged time within which to appeal. The appeal was therefore brought without leave and was incompetent.

Reasoning

The respondent's counsel argued that the appeal had been brought without leave because the application for leave was made outside the fourteen days allowed for that purpose. The court found that the appellant's application for leave dated June 29, 1994 had not been granted by the learned Judge, who instead enlarged time within which to appeal. The court treated that enlargement of time as leaving the appellant without the leave of the superior court required to appeal to the Court of Appeal, and held the appeal incompetent on that account, striking it out together with the record objection.

p. 2

Legal principles established

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  • An appeal in which the order appealed from is not included in the record of appeal is incompetent and may be struck out on that ground.
  • Where leave of the superior court is required for an appeal, an order enlarging time within which to appeal is not a grant of leave; an appeal prosecuted without the required leave is incompetent and liable to be struck out.
  • An incompetent appeal - whether because the order appealed from is missing from the record or because the required leave was never granted - will be struck out on the objection of the respondent.

Court orders

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  1. 1.The appeal is struck out for being incompetent
  2. 2.No order as to costs

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 Eldoret
H.C.C. Appeal No. 152 of 1993
Jurisdiction invoked
Not stated in the ruling. The appeal lay to the Court of Appeal from an order of the High Court at Eldoret and, as the ruling records, required leave of the superior court, which was not granted.

Relief refused

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The appellant's prosecution of the appeal, which was struck out as incompetent

The order appealed from was not included in the record of appeal, and the appellant had no leave of the superior court to appeal, the learned Judge having enlarged time within which to appeal instead of granting the application for leave

p. 2

Costs

No order as to costs.

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.

We therefore uphold the objection by the respondent that the appeal be struck out for being incompetent and we strike out the same with no order as to costs.
p. 2Final orders - striking out for incompetence with no order as to costs
We also see that the appellant did not have leave of the superior court to appeal to this Court because his application for leave dated June 29, 1994 had not been granted by the learned Judge who instead enlarged time within which to appeal.
p. 2Enlargement of time within which to appeal is not a grant of leave to appeal
We agree that the order appealed from is not in the record of appeal.
p. 2Record of appeal must contain the order appealed from
Counsel for the respondent applies that the appeal herein be struck out because the order appealed from is not included in the record of appeal and that the appeal has been brought without leave in that the application for leave had been made outside the fourteen days allowed for that purpose.
p. 2Grounds of the striking-out application

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, "Samuel Ndura Kanyara v Mary Njambi [2001] KECA 293 (KLR)", Case Analysis (2001). Civil Appeal No. 215 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/293/eng@2001-09-26

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