Kamere & Co. Advocates v Cressswell, Mann & Dod Advocates [2002] KECA 237 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the lawyers never obtained the leave (permission) required to appeal, showing that missing this step kills an appeal entirely.
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 Court has jurisdiction to hear an appeal from an originating summons brought under Order 52 Rules 7 and 10 of the Civil Procedure Rules where no leave to appeal was obtained
- 2.Whether the notice of motion to strike out the appeal should be allowed
Key legal issues
#Whether the Court of Appeal has jurisdiction over an appeal from an Order 52 originating summons where no leave to appeal was obtained
The Court has no jurisdiction to hear the appeal, nor even to determine whether the appeal was lodged in time, because the appeal was brought under a rule of Order 52 for which leave is required and no leave was obtained.
The originating summons in the High Court was brought under Order 52 Rules 7 and 10 of the Civil Procedure Rules. Appeals as of right lie only under rules 4, 5, 6 and 6A of that order; appeals under the remaining rules require leave of the superior court or of the Court of Appeal. Counsel for the appellant conceded that no leave was obtained. Without leave, the appeal is incompetent and the Court lacks jurisdiction even to consider timeliness.
Legal principles established
#- An appeal lies as of right only under rules 4, 5, 6 and 6A of Order 52 of the Civil Procedure Rules; an appeal from an originating summons under the remaining rules requires leave of the superior court or of the Court of Appeal, and without such leave the Court of Appeal has no jurisdiction to hear the appeal.
Court orders
#- 1.The notice of motion lodged in the Court on 23rd August 2001 is allowed
- 2.Civil Appeal No. 304 of 2000 lodged in the court on 27th October 2001 is struck out with costs
- 3.The costs of the motion to strike out the appeal are awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C No. 542 of 1996 (O.S)
- Jurisdiction invoked
- Order 52 Rules 7 and 10 of the Civil Procedure Rules - appeal under a rule of Order 52 for which leave is required; no leave obtained, so the Court has no jurisdiction to hear the appeal
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.
An appeal would lie as of right only under rules 4, 5, 6 and 6A of that order. One, therefore, requires the leave of the superior court or of this Court to be able to mount a competent appeal under the remaining rules of the order.
The Court, accordingly, has no jurisdiction to hear the appeal or even to determine whether the appeal was or was not lodged in time.
We allow the notice of motion lodged in this Court on 23rd August, 2001 and order that Civil Appeal No. 304 of 2000 lodged in the court on 27th October, 2001 be and is hereby struck out with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamere & Co. Advocates v Cressswell, Mann & Dod Advocates [2002] KECA 237 (KLR)", Case Analysis (2002). Civil Appeal (Application) No. 304 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/237/eng@2002-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.