Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutCivil Appeal (Murang'a), ruling in Kigumo SRMCC No. 187 of 2007· [2019] KEELC 1718 (KLR)

David Kariuki Ndirangu v Magdalene Wambui Ndirangu & another [2019] KEELC 1718 (KLR)

High Court of Kenya
19 September 2019
JKJ G Kemei
2,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Appellant appealed against a ruling of A. Mwangi SRM delivered on 5 May 2016 in Kigumo SRMCC No. 187 of 2007, a family land dispute over coffee-producing land, in which the magistrate dismissed his suit for want of prosecution on a Notice of Motion dated 28 July 2015 filed by the 1st Respondent. The Appellant sought setting aside of the dismissal and directions for expeditious hearing, arguing that counsel had agreed to keep the suit in abeyance pending determination of Kigumo P&A Cause No. 63 of 2007, that the 2nd Respondent was not served with the dismissal application, that the magistrate erred in suo moto perusing the succession file, and that the suit, involving family land, should have been saved under sections 1A, 1B and 3A of the Civil Procedure Act. The Respondents maintained the suit had lain dormant for over seven years, that an amended plaint had been struck out, and that the Appellant had abusively filed a fresh suit, SPMCC No. 42 of 2013, over the same parcel. The 1st Respondent raised a threshold objection that the appeal, arising from an Order 17 ruling, required leave which had neither been sought nor obtained. The Court agreed, holding that under Order 43 of the Civil Procedure Rules and section 75 of the Civil Procedure Act, appeals from Order 17 orders lie only with leave, that the wording is mandatory, and that failure to obtain leave rendered the appeal incompetent and divested the Court of jurisdiction. The mis-citation of Order 17 rule 15 instead of Rule 1(2) was excused under Order 50 Rule 10 as a non-fatal technicality. The Court struck out the appeal with costs to the Respondents.

Key legal issues

#
01

Whether the appeal was competently before the High Court without leave

Holding

The appeal was incompetent; an appeal from an Order 17 ruling requires leave, which was neither sought nor obtained, and the appeal was struck out with costs

Reasoning

The appeal arose from a dismissal for want of prosecution under Order 17. Order 43 of the Civil Procedure Rules provides that appeals lie as of right only from the orders listed therein, and with leave from any other order. Section 75 of the Civil Procedure Act is in mandatory terms. Since the Appellant never sought or obtained leave, the Court lacked jurisdiction and the only proper course was to strike out the appeal.

p. 4
02

Whether citation of the wrong Civil Procedure Rules provisions (Order 17 rule 15 instead of Order 17 Rule 1(2)) fatally flawed the appeal

Holding

No; under Order 50 Rule 10 a misquotation not affecting the substance is not fatal

Reasoning

The Appellant had cited Order 17 rule 15(2 and 3) when the applicable provision was Order 17 Rule 1(2). The Court, guided by Order 50 Rule 10 which forbids defeating an application on a technicality or want of form not affecting substance, held the mis-citation immaterial - but this did not cure the absence of leave.

p. 3

Legal principles established

#
  • An appeal from an order made under Order 17 of the Civil Procedure Rules requires leave of the Court; failure to seek and obtain leave renders the appeal incompetent and deprives the Court of jurisdiction
  • Quoting the wrong provisions of the Civil Procedure Rules is not fatal where it does not affect the substance of the application

Court orders

#
  1. 1.The appeal is struck out
  2. 2.Costs of the appeal to the Respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 75(1)(h)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 17 Rule 1(2)
  • Civil Procedure RulesOrder 43
  • Civil Procedure RulesOrder 50 Rule 10
  • Civil Procedure RulesOrder 51 Rule 5

Cases cited (1)

  • Kenya Ports Authority vs. Kuston (Kenya) Limited
    [2009] 2EA 212
On appeal from
Senior Resident Magistrate's Court, Kigumo
Civil Case No. 187 of 2007
Jurisdiction invoked
Sections 1A, 1B and 3A and Section 75 of the Civil Procedure Act; Orders 17, 43 and 50 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "David Kariuki Ndirangu v Magdalene Wambui Ndirangu & another [2019] KEELC 1718 (KLR)", Case Analysis (2019). Civil Appeal (Murang'a), ruling in Kigumo SRMCC No. 187 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1718/eng@2019-09-19

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