Marie Stopes (K) Limited v Cecilia Kihara [2017] KEELC 3573 (KLR)
The bottom line
#Kenya's High Court allowed an appeal filed late because jurisdiction questions can be raised anytime, and paused the lower court case pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal against the ruling lay as of right or required leave of the trial court
The application is competently before the High Court; the preliminary objection on jurisdiction raised in the trial court was a question of law, and an appeal on such a question lies as of right under section 65(1)(b) of the Civil Procedure Act, so no prior leave was required.
The court read Order 43 rule 1, which lists orders appealable as of right, and found jurisdiction not listed. However, section 65(1)(b) of the Civil Procedure Act permits appeals to the High Court on questions of law. The applicant's preliminary objection on the magistrate's jurisdiction was a question of law, which may be raised at any stage, so the right of appeal lay as of right and the application was properly filed without prior leave.
Whether the applicant was entitled to extension of time to file the appeal
Extension of time granted; the memorandum of appeal filed on 25 January 2016 was deemed filed within time on payment of requisite court fees.
The respondent did not deny that the ruling was delivered in the absence of both parties, nor that the application was made without undue delay. The delay was adequately explained in the affidavit in support, and parties are entitled to a right of appeal, so there was no reason to refuse the applicant an opportunity to pursue its appeal.
Whether the proceedings in the trial court should be stayed pending the appeal
Stay of proceedings granted; the applicant's contention that the trial court lacks jurisdiction constituted sufficient cause, as continued proceedings would waste judicial time and possibly render the proceedings a nullity.
Order 42 rule 6(1) allows an application for stay either before the court whose order is appealed or the court to which the appeal is preferred, so the prayer was not premature. The applicant need only demonstrate substantial loss; if the trial proceeds and the appeal succeeds, the matter would be heard twice and the proceedings would be a nullity for want of jurisdiction. That was sufficient cause for a stay.
Legal principles established
#- An appeal on a question of law, including jurisdiction, lies to the High Court as of right and not with the permission of the court whose order is being appealed
- The question of jurisdiction can be raised at any stage of the proceedings
- Order 42 rule 6 does not require an application for stay to be made first before the trial court; the applicant may go either to the court whose order is appealed or to the court to which the appeal is preferred
- The applicant for stay need only demonstrate that substantial loss may result if the stay is not granted
Court orders
#- 1.Leave granted to the applicant to appeal out of time against the ruling made by Hon. Justus Kituku (PM) dated 25th April 2015
- 2.The memorandum of appeal filed on 25th January 2016 deemed to have been filed within time, on payment of the requisite court fees
- 3.Stay of further proceedings in MSA CMCC No. 1589 of 2014 pending the hearing and determination of the appeal
- 4.Each party to bear their own costs of the application
- On appeal from
- Chief Magistrate's Court at Mombasa
- MSA CMCC No. 1589 of 2014
- Jurisdiction invoked
- Sections 3A, 79G and 95 of the Civil Procedure Act; Orders 42 rule 6, 50 rule 1 and 51 of the Civil Procedure Rules; Articles 50 and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marie Stopes (K) Limited v Cecilia Kihara [2017] KEELC 3573 (KLR)", Case Analysis (2017). Not stated in the judgment (arising from MSA CMCC No. 1589 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3573/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.