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ELCAllowednot stated in extract (Eldoret ELC suit, plaint filed 26 October 2009)· [2018] KEELC 392 (KLR)

Bebiji Petroleum Limited v Sarah Wanjiku & 3 Others [2018] KEELC 392 (KLR)

Environment and Land Court
30 November 2018
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled that if your case is dismissed for non-attendance, you must first ask that same court for permission to appeal—within 14 days.

What this practically means

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Executive summary

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This was a ruling on a notice of application dated 19 November 2018 by which the plaintiff sought leave to appeal an order of the Environment and Land Court at Eldoret made on 5 November 2018. On that date, during service week set aside to finalise old cases, the plaintiff did not attend the hearing; counsel applied for an adjournment, which was opposed and refused, and the suit - a 2009 claim for eviction of the defendants from Eldoret Municipality Block 6/193 - was dismissed for non-attendance with costs to the defendants. The defendants' defence was that the land was set aside for Uasin Gishu High School and that the 1st and 2nd defendants occupied the house as teachers. The only contested issue on the application was jurisdiction: counsel for the 3rd defendant submitted that the application for leave should have been filed before the Court of Appeal, while counsel for the plaintiff relied on section 75 of the Civil Procedure Act. The court held that although section 75(1) permits leave to be granted by either the court making the order or the appellate court, Order 43 Rule 3 requires the application in the first instance to be made to the court that made the order, orally at the time or within fourteen days. It further held that because the defendants were also absent on the hearing date, the dismissal was under Order 12 Rule 1, not Order 12 Rule 7, so leave was required. Filed within fourteen days, the application was allowed and leave to appeal granted, with costs reserved to the intended appeal.

Key legal issues

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01

Jurisdiction to grant leave to appeal

Holding

The court that made the order has jurisdiction to grant leave to appeal it; the objection that the application belonged before the Court of Appeal failed.

Reasoning

Section 75(1) of the Civil Procedure Act provides that where an order requires leave, either the court making the order or the court to which an appeal would lie may grant leave. However, Order 43 Rule 3 directs that such applications be made in the first instance to the court that made the order, orally at the time or within 14 days. Counsel's contrary argument therefore held no water.

p. 3
02

Whether leave is necessary

Holding

Leave was necessary because the dismissal was under Order 12 Rule 1, which is not among the orders listed in Order 43 Rule 1 for appeal as of right.

Reasoning

Order 43 Rule 1(h) gives a right of appeal only in respect of orders under Order 12 Rule 7 (setting aside judgment or dismissal for non-attendance). Here, since the defendants were also absent on the hearing date, the dismissal was under Order 12 Rule 1, which is not listed, so an appeal lies only with leave.

p. 4
03

Timeliness of the application

Holding

The application filed on 19 November 2018 was within the 14-day period under Order 43 Rule 3 measured from the 5 November 2018 order.

Reasoning

Order 43 Rule 3 requires an application for leave to be made orally when the order is made or within fourteen days from the date of the order. The order was made on 5 November 2018 and the application was filed on 19 November 2018, which the court found to be just within the period.

p. 4

Legal principles established

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  • An application for leave to appeal under section 75 of the Civil Procedure Act shall in the first instance be made to the court that made the order sought to be appealed from, not the appellate court.
  • Where the dismissal for non-attendance falls under Order 12 Rule 1 (both parties absent) rather than Order 12 Rule 7, leave to appeal is required.

Court orders

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  1. 1.Leave granted to the plaintiff to appeal the decision of 5 November 2018 dismissing the suit for non-attendance
  2. 2.Costs of the application to be within the intended appeal

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 75
  • Civil Procedure Rules, 2010Order 43 Rules 1, 1(h), 2, 3 and 4
  • Civil Procedure Rules, 2010Order 12 Rules 1 and 7
Jurisdiction invoked
Section 75 of the Civil Procedure Act, Cap 21, and Order 43 Rules 1(2)(3) of the Civil Procedure Rules, 2010

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, "Bebiji Petroleum Limited v Sarah Wanjiku & 3 Others [2018] KEELC 392 (KLR)", Case Analysis (2018). not stated in extract (Eldoret ELC suit, plaint filed 26 October 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/392/eng@2018-11-30

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