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ELCStruck OutNot stated in the judgment· [2021] KEELC 2120 (KLR)

Steven Ouko Oroka v Stanley Shiundu Amukata [2021] KEELC 2120 (KLR)

Environment and Land Court / High Court at Kisumu (not expressly named in the judgment)
3 September 2021
AOAntony Ombwayo
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an appeal filed without the mandatory leave to appeal, confirming that appeals made without permission are dead on arrival.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in an appeal at Kisumu against a subordinate court's decision. The parties had recorded a consent on 28th June 2019 under which the appellant was to pay Kshs 1,450,000/= in exchange for land parcel Kisumu/Manyatta 'A'/2704, failing which an eviction order would issue. The appellant defaulted and was evicted. He then applied on 6th September 2019 to have the consent set aside on the ground that his advocate had entered it without his authority; that application was dismissed. He lodged an appeal without leave, then belatedly sought leave, and the court dismissed the leave application on 6th January 2020 for inordinate delay. The respondent's preliminary objection dated 1st November 2019 contended that the appeal, having arisen from a ruling made under sections 1A, 1B and 3A of the Civil Procedure Act, required leave under Section 75 of the Act and Order 43 of the Rules, which had neither been sought before filing nor granted, leaving the court without jurisdiction. The appellant filed no submissions in opposition. Relying on Motor Vessel M.V. Lillians, Kakuta Maimai Hamisi and Peter Nyaga Murake (as cited in Edith Wairimu Njoroge), the court held that a court must have jurisdiction before it acts, that absence of leave where leave is required renders an appeal incompetent, and that having denied leave its hands were tied. The preliminary objection was upheld and the appeal struck out with costs to the respondent.

Key legal issues

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01

Whether an appeal filed without (and after denial of) required leave is competent

Holding

The appeal was incompetent and the court had no jurisdiction to entertain it; the preliminary objection was upheld and the appeal struck out

Reasoning

The appeal emanated from a ruling made pursuant to sections 1A, 1B and 3A of the Civil Procedure Act, which is appealable only with leave under Section 75 of the Act and Order 43 of the Rules. The court had, by ruling of 6th January 2020, dismissed the appellant's application for leave on grounds of inordinate delay. Citing Kakuta Maimai Hamisi and Peter Nyaga Murake, the court held that without an appeal-donating provision satisfied by leave, the court is bereft of jurisdiction and its hands are tied.

p. 2

Legal principles established

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  • A court must have jurisdiction before proceeding with any matter; absence of leave where leave is required renders an appeal incompetent
  • Where leave to appeal is required, its procurement is a sine qua non to a valid notice of appeal; without leave there can be no valid appeal

Court orders

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  1. 1.Preliminary Objection dated 1st November 2019 upheld
  2. 2.Appeal struck out
  3. 3.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 75(1)(h)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 43 Rule 1(1),(2),(3)

Cases cited (4)

  • Motor Vessel M.V. Lillians vs Caltex Oil (Kenya) Limited
    (1989) LLR 1653
  • Edith Wairimu Njoroge vs Brooks Holdings Co. Ltd
  • Peter Nyaga Murake vs Joseph Mutunga
    Civil Appeal No. (Nairobi) 86 of 2015
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    [2013] eKLR
On appeal from
Subordinate court (name not stated in the judgment)
Jurisdiction invoked
Appeal under Section 75(1)(h) of the Civil Procedure Act as read with Order 43 Rule 1(1),(2),(3) of the Civil Procedure Rules; appealability contested for want of leave

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, "Steven Ouko Oroka v Stanley Shiundu Amukata [2021] KEELC 2120 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2120/eng@2021-09-03

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