Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal (date July 10, 2020; Mombasa) - number not stated in judgment· [2023] KECA 306 (KLR)

4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan v Union Link Logistics & 3 others

Court of Appeal
17 March 2023
SKS. Gatembu KairuPNP. NyamweyaGOG.V. Odunga
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out 4MB Mining's appeal because it never got the required permission (leave) to challenge a costs order.

What this practically means

#

Executive summary

#
This Court of Appeal (Mombasa) judgment concerned an appeal by 4MB Mining Limited against a High Court ruling of May 14, 2020 by Chepkwony J, which allowed the 3rd respondent's application for entry of judgment upholding the preliminary objection and referred costs to taxation, including costs in favour of the 1st and 2nd respondents. The background was this Court's earlier judgment of July 25, 2019 in Civil Appeal No 118 of 2018, which set aside the High Court ruling of July 6, 2018, upheld the preliminary objection on jurisdiction, and awarded costs of the suit and appeal to the 3rd respondent. At the hearing, the 1st and 2nd respondents objected to the competence of the appeal, noting that an order as to costs is appealable only with leave under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, and that the bills of costs had already been taxed. The Court agreed: there was no evidence that leave had been granted, and the appellant's own application of July 13, 2020 for extension of time and leave acknowledged the requirement. Following Peter Nyaga Muvake v Joseph Mutunga, the Court held that without leave there is no valid notice of appeal and jurisdiction is not properly invoked. The appeal was struck out with costs to the 1st and 2nd respondents. The Court noted but did not act on the observation that the taxation was already complete. The decision binds subordinate courts and the High Court on the jurisdictional precondition of leave.

Key legal issues

#
01

Competence of an appeal filed without the statutorily required leave

Holding

An appeal against an order for payment of costs requires leave; an appeal lodged without leave is incompetent and must be struck out

Reasoning

Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules specify the orders appealable as of right; any other order requires leave. The appellant claimed leave had been granted by the High Court but produced no evidence. Its own application dated July 13, 2020 seeking enlargement of time to apply for leave and leave itself acknowledged that leave was required and had not been granted. Following Peter Nyaga Muvake v Joseph Mutunga, the Court held it had no jurisdiction.

p. 3
02

Effect of applying for leave on the requirement itself

Holding

An application for enlargement of time to seek leave and for leave to appeal is an acknowledgment that leave is required and has not been granted

Reasoning

The Court treated the appellant's application dated July 13, 2020 as a tacit admission contradicting counsel's assertion that the appeal lay as of right and that leave had been granted by the High Court. No record evidence supported the claim of a High Court grant of leave.

p. 3

Legal principles established

#
  • Where leave to appeal is required under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, the procurement of leave is a condition precedent; without leave there can be no valid notice of appeal and the appellate court has no jurisdiction

Court orders

#
  1. 1.The appeal is struck out
  2. 2.Costs of the appeal to the 1st and 2nd respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 75(1)
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 43 Rule 1(1)
  • Civil Procedure RulesOrder 43
  • Civil Procedure RulesOrder 42

Cases cited (2)

  • Peter Nyaga Muvake vs Joseph Mutunga
    [2015] eKLR
  • Nyutu Agrovet v Airtel Networks Ltd
    [2015] eKLR
On appeal from
High Court
not stated (ruling of May 14, 2020 by DO Chepkwony, J)
Jurisdiction invoked
Appeal to Court of Appeal under Section 75 of the Civil Procedure Act as read with Order 43 of the Civil Procedure Rules; competence dependent on leave to appeal, which was never obtained

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan v Union Link Logistics & 3 others", Case Analysis (2023). Civil Appeal (date July 10, 2020; Mombasa) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/306/eng@2023-03-17

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