Celina Nkirina & another v Susan Nkatha & 3 others [2021] KEELC 1172 (KLR)
The bottom line
#The court refused the plaintiff permission to appeal because orders on mandatory injunctions can be appealed directly without asking for permission first.
What this practically means
#Executive summary
#Key legal issues
#Appealability of the 5th May 2021 order
The order, made under Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules in dismissing a mandatory injunction application, is appealable as of right under Order 43; leave is unnecessary.
Section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules delineate orders appealable as of right from those requiring leave. Order 43 lists the orders appealable as of right, including orders under Order 40. Since the dismissed application was brought under Order 40 Rules 1, 2 and 10 seeking a mandatory injunction, the resulting order falls within the list, and the application for leave lacks merit.
Legal principles established
#- An appeal lies as of right against orders made under Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules (mandatory injunction orders), so leave to appeal is not required
- Unless the order sought to be appealed against falls under the orders listed in Order 43, leave to appeal must be sought and obtained before lodging the appeal
Court orders
#- 1.The application dated 12th May 2021 for leave to appeal is dismissed with costs to the defendants
- Jurisdiction invoked
- Section 75 of the Civil Procedure Act, Order 43 rule 1(2) and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celina Nkirina & another v Susan Nkatha & 3 others [2021] KEELC 1172 (KLR)", Case Analysis (2021). Not stated (Application dated 12th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1172/eng@2021-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.