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ELCDismissedNot stated (Application dated 12th May 2021)· [2021] KEELC 1172 (KLR)

Celina Nkirina & another v Susan Nkatha & 3 others [2021] KEELC 1172 (KLR)

Environment and Land Court
27 October 2021
450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By an application dated 12th May 2021, the plaintiff sought leave to appeal against the court's ruling and order of 5th May 2021, premised on Section 75 of the Civil Procedure Act and Order 43 rules 1(2) and 3 of the Civil Procedure Rules. The plaintiff explained that no oral application for leave was made when the ruling was delivered owing to Covid protocols, that no supporting affidavit was necessary, and that the application was filed within the prescribed timelines. The underlying ruling had dismissed the plaintiff's notice of motion dated 10th September 2020, brought under Sections 1A and 3A and Order 40 Rules 1, 2 and 10 seeking a mandatory injunction, on the ground that there existed a regular order or decree from a court of concurrent jurisdiction - the High Court sitting in a succession cause at Meru. The court (Nzili, ELC Judge) analysed the framework of appealability: Section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules list orders appealable as of right, and any other order requires leave before an appeal may be lodged. Holding that the 5th May 2021 order was made under Order 40 Rules 1, 2 and 10, the court found that appeals against such orders lie as of right, rendering an application for leave unnecessary and without merit. The application dated 12th May 2021 was dismissed with costs.

Key legal issues

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01

Appealability of the 5th May 2021 order

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 12th May 2021 for leave to appeal is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 75(1)
  • Civil Procedure RulesOrder 43 rule 1(2) and 3; Orders 1, 2, 3, 7, 8, 10, 15, 19, 22, 23, 24, 25, 26, 28, 34, 35, 40, 42, 50, 52, 53; Order 40 Rules 1, 2 and 10; Sections 1A, 3A
Jurisdiction invoked
Section 75 of the Civil Procedure Act, Order 43 rule 1(2) and 3 of the Civil Procedure Rules

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, "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.