Bebiji Petroleum Limited v Sarah Wanjiku & 3 Others [2018] KEELC 392 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to grant leave to appeal
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.
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.
Whether leave is necessary
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.
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.
Timeliness of the application
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.
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.
Legal principles established
#- 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
#- 1.Leave granted to the plaintiff to appeal the decision of 5 November 2018 dismissing the suit for non-attendance
- 2.Costs of the application to be within the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.