Rayleigh W. Wanyama v Lorna Mukhwana Wanyama & 3 others [2020] KECA 802 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed without required leave, confirming courts cannot skip appeal-approval rules even by invoking constitutional justice values.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was competent absent leave to appeal
The appeal was incompetent and was struck out because it did not lie as of right and leave was neither sought nor obtained from the High Court or the Court of Appeal, as counsel for the appellant conceded.
The impugned ruling arose from a preliminary objection and was not appealable as of right under Order 43 of the Civil Procedure Rules. The court relied on its own precedents holding that leave is a prerequisite to the assumption of appellate jurisdiction and that without leave there can be no valid Notice of Appeal, so jurisdiction was never properly invoked.
Whether Article 159 of the Constitution cures the failure to obtain leave
Article 159(2)(d) is not a panacea that cures procedural defaults such as the failure to obtain leave; the right of appeal goes to jurisdiction and cannot be ignored as a mere technicality.
Relying on Kakuta Maimai Hamisi v Peris Pesi Tobiko and Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that the right of appeal is so fundamental that its absence by statutory donation cannot be treated as a technicality, and that procedure is a handmaiden of just determination of cases rather than antithetical to Article 159.
Legal principles established
#- Where an order is appealable only with leave, the procurement of leave is a prerequisite to the assumption of jurisdiction by the Court of Appeal and to the validity of the Notice of Appeal.
- Without a valid Notice of Appeal, the jurisdiction of the Court of Appeal is not properly invoked; a notice of appeal filed without the requisite leave is a nullity.
- Article 159(2)(d) of the Constitution cannot be used to cure the absence of a statutory right of appeal or the failure to obtain leave; compliance with procedure is not antithetical to Article 159.
Court orders
#- 1.The appeal is struck out with no order as to costs
- On appeal from
- High Court of Kenya at Bungoma
- HCCA No. 43 of 2012
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9); the appeal was from a ruling striking out an appeal from a subordinate court's ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rayleigh W. Wanyama v Lorna Mukhwana Wanyama & 3 others [2020] KECA 802 (KLR)", Case Analysis (2020). Civil Appeal No. 96 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/802/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.