Mohamed Ali Taib v Salim Agil Said

The Court noted that Rule 41(b)(ii) (formerly Rule 39(b)) expressly permits a party whose leave application was refused by the High Court to apply afresh to the Court of Appeal within fourteen days of the refusal. The only condition is the fourteen-day timeline, which Laibuta JA had already found satisfied. Following Zeinab Khalifa, the jurisdiction is original, akin to Rule 5(2)(b), not appellate or review, so res judicata under section 7 of the Civil Procedure Act does not apply.

Adopting Zeinab Khalifa, which drew on Sango Bay Estate Ltd v Dredner Bank A.G. and Machira t/a Machira & Company Advocates v Mwangi, the Court held that the discretion to grant leave turns on whether the draft memorandum of appeal raises arguable issues. The parties' competing positions on when time began to run for execution demonstrated an arguable point; even a single issue meriting serious judicial consideration suffices.

An earlier ruling by Laibuta JA on 10th November 2023, clarified on 30th November 2023, had found the notice of appeal and motion for leave filed in time, struck out the extension-of-time prayer as superfluous, and directed that the leave prayer proceed before a full Bench. The Court therefore confined itself to the leave question and declined to engage with the limitation and execution arguments canvassed by the parties.