Kaburu (Suing as the Guardian ad-Litem and heir of the estate of the late Isaiah Mabellini) v Mabellini & 3 others
The bottom line
#A Kenyan court granted a party a second chance to appeal, but refused to rescue an appeal notice filed without the required permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant showed sufficient grounds for leave to appeal out of the statutory 14-day window
Leave to appeal was granted in the interest of justice, but the claim of insufficient notice of virtual delivery was rejected.
The court found that the ruling had been reserved for delivery on notice and that proper notices were given through the court's usual channels. Counsel's complaints about lack of physical presence in Malindi and lack of notice were untenable given the multiple notification forums available since the advent of Covid-19. However, discretion could still be exercised in the interest of justice to grant fresh leave with a new 14-day window.
Whether a Notice of Appeal filed without leave can be deemed properly on record
No; such a Notice of Appeal cannot be sanitized and is ineffective.
Relying on Moffat Nyaga Kagau v Patrick Opundo Owiti and Peter Nyaga Murake v Joseph Mutunga, the court held that where leave to appeal is a prerequisite, the procurement of leave is sine qua non to the lodging of a Notice of Appeal. Without leave there can be no valid Notice of Appeal and no properly invoked appellate jurisdiction. The applicant's filed Notice of Appeal therefore could not be deemed properly filed.
Legal principles established
#- An appeal from an order appealable only with leave cannot be lodged without first obtaining leave; failure to seek and obtain leave is fatal.
- Parties and counsel are on notice of delivery of judgments and rulings through various court notification forums including cause lists, notice boards, emails and court Telegram channels.
Court orders
#- 1.Leave granted to the Applicant to appeal the ruling delivered on 10th February 2022
- 2.Applicant granted 14 days to file a Notice of Appeal, failing which the leave lapses
- 3.Costs to abide the outcome of the intended appeal
- Jurisdiction invoked
- Order 43 rules (1), (2), (3) and (4) of the Civil Procedure Rules; section 75 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaburu (Suing as the Guardian ad-Litem and heir of the estate of the late Isaiah Mabellini) v Mabellini & 3 others", Case Analysis (2022). Land Case 65 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13287/eng@2022-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.