Said ((Legal representative of the Estate of Saod Abdallah Azubeidi (Deceased)) v Ikumbu (Civil Application E058 of 2023) [2024] KECA 69 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed without the required court permission, warning that such appeals are dead on arrival.
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 respondent's appeal filed without leave was competent, given that the orders appealed against under Order 40 of the Civil Procedure Rules are not appealable as of right under Section 75 of the Civil Procedure Act
- 2.Whether the applicant's motion dated 3rd June 2023 to strike out the appeal should be allowed
Key legal issues
#Whether an appeal lies as of right from orders made under Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules where no temporary injunction was granted
An appeal does not lie as of right; leave was required and not obtained, so the appeal is incompetent
Section 75 of the Civil Procedure Act lists the orders appealable as of right; Order 40 is not among them. Order 43(1)(u) allows appeals as of right only in respect of temporary injunctions, but here the injunction was refused, not granted. Therefore leave was required; none was sought or obtained, leaving no competent appeal before the Court.
The consequence of filing an appeal without the requisite leave
The appeal is incompetent and may be struck out under Rule 86 of the Court of Appeal Rules
Relying on Peter Nyaga Muvake v Joseph Mutunga, the court reaffirmed that where leave is a sine qua non, without leave there is no valid notice of appeal and the court's jurisdiction is not invoked. The respondent conceded leave was not sought, arguing the application could not be isolated to Order 40(10), but the court found no competent appeal existed regardless.
Legal principles established
#- Where an order is appealable only with leave under Section 75 of the Civil Procedure Act, failure to obtain leave renders the appeal incompetent and deprives the Court of Appeal of jurisdiction to entertain it
Court orders
#- 1.The respondent's appeal dated 2nd May 2023 is struck out
- 2.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nakuru
- Nakuru ELC Case No. 178 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (CAP 9), Rules 44(1)(2), 45(1), 77 and 86 of the Court of Appeal Rules 2022
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.
In view of the above and the respondent having failed to obtain leave before filing the instant appeal, there can be no and there is no competent appeal before us and the instant appeal as filled is dead on arrival.
Where, as in this case, leave to appeal is necessary by dint of Section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, the procurement of leave to appeal is a sine qua non to the lodging of the notice of appeal.
Accordingly, the respondent’s appeal dated 02.05.2023, is hereby struck out with costs to the applicant.
Issues in the judgment
#The respondent is not named anywhere in the judgment; the parties are referred to only as 'the applicant' and 'the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said ((Legal representative of the Estate of Saod Abdallah Azubeidi (Deceased)) v Ikumbu (Civil Application E058 of 2023) [2024] KECA 69 (KLR)", Case Analysis (2024). Court of Appeal Civil Appeal Number E058 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/69/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.