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Court of AppealDismissedApplication dated 14th August 2017· [2024] KECA 431 (KLR)

Amuga and Company Advocates v Nzisa (Civil Application E195 of 2017) [2024] KECA 431 (KLR)

Court of Appeal
26 April 2024
SKS. Gatembu KairuPNP. NyamweyaGNG.W. Ngenye-Macharia
596 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal filed without leave is safe if the High Court later grants that leave.

What this practically means

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Executive summary

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The applicant, the law firm of Amuga and Company Advocates, applied to the Court of Appeal by an application dated 14th August 2017 under Rule 84 (now Rule 86) of the Court of Appeal Rules, seeking the striking out of a notice of appeal dated and lodged in the High Court on 19th July 2017 by the respondent, who appeared in person. The intended appeal was against a ruling of 17th July 2017 by F. Ochieng, J. (as he then was), which upheld a preliminary objection and struck out an appeal the respondent had filed challenging a decision of the Deputy Registrar settling terms of sale of immovable property in execution of a decree. Counsel for the applicant argued that there was no right of appeal against that ruling, that leave to appeal had not been obtained, and that the respondent had lost interest in the matter. The respondent contended in a replying affidavit that leave to appeal had in fact been granted by the High Court. The Court noted that by Ruling No. 2 delivered on 6th March 2018, the High Court expressly granted the respondent leave to appeal against the ruling of 17th July 2017. Although that order was made after the filing of the notice of appeal, the Court held that it cured the defect complained of. The Court accordingly declined to strike out the notice of appeal, dismissed the application, and, because the defect was cured only after the application had been filed, awarded the costs of the application to the applicant.

Key legal issues

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01

Whether a notice of appeal filed before leave to appeal was granted could be struck out for want of leave

Holding

The notice of appeal could not be struck out because the High Court later granted leave to appeal, curing the defect

Reasoning

The applicant sought to strike out the notice of appeal on the ground that no leave had been obtained when the respondent filed her notice on 19th July 2017. However, by Ruling No. 2 of 6th March 2018, the High Court expressly granted the respondent leave to appeal against the ruling of 17th July 2017. The Court held that although the order granting leave came after the filing of the notice, it cured the defect underlying the application, and the application therefore failed.

p. 2

Legal principles established

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  • A notice of appeal filed without leave to appeal is not liable to be struck out where leave is subsequently granted by the High Court, as the later order cures the defect

Court orders

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  1. 1.The application dated 14th August 2017 seeking to strike out the notice of appeal is dismissed
  2. 2.The applicant is awarded the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 84 (now Rule 86)
  • Civil Procedure RulesOrder 49, Rule 7

Cases cited (2)

  • James Mwakio vs. Kenya Commercial Bank Limited
    [1995] eKLR
  • Kenya Commercial Bank Limited vs Tony Manaseh Esipeya
    [199] eKLR
On appeal from
High Court
Jurisdiction invoked
Rule 84 (now Rule 86) of the Court of Appeal Rules

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, "Amuga and Company Advocates v Nzisa (Civil Application E195 of 2017) [2024] KECA 431 (KLR)", Case Analysis (2024). Application dated 14th August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/431/eng@2024-04-26

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