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ELCPartially AllowedEnvironment & Land Case E032 of 2021· [2022] KEELC 14815 (KLR)

Kigwe v Kigwe Limited & another

Environment and Land Court
10 November 2022
JKJ G Kemei
2,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court allowed a landowner to appeal a ruling that threw out her land case, stressing everyone's constitutional right to be heard.

What this practically means

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Executive summary

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The plaintiff, Celine Wambui Kigwe, moved the Environment and Land Court at Thika by a notice of motion dated December 12, 2021 under Order 43 Rule 3(1), Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63E of the Civil Procedure Act, seeking leave to appeal against the court's Ruling of December 9, 2021, which had dismissed her suit as res judicata. She also sought extension of status quo over sixteen acres out of L.R. No. 10823/13 pending appeal, but counsel withdrew those prayers on June 13, 2022, leaving only the leave prayer. The 2nd defendant, Mhasibu Housing Company Limited, opposed, arguing the application was unmerited, an abuse of process, and an attempt to deny it the fruits of its judgment. The court framed a sole issue: whether the application was merited. It traced the right of appeal to section 75 of the Civil Procedure Act and Order 43, noting that orders not appealable as of right require leave, applied within fourteen days. Relying on Kenya Shell v Kobil Petroleum, Rene Dol, Sango Bay Estates and Machira, the court held that leave is discretionary but must be judicially exercised, and that leave is normally granted where grounds of appeal merit serious judicial consideration. Without delving into the merits of the intended appeal, and guided by Article 50's guarantee of the right to be heard, the court granted leave to appeal. It made no orders as to costs.

Key legal issues

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01

Whether the applicant should be granted leave to appeal against the Ruling of 9/12/2021 dismissing her suit as res judicata

Holding

Leave granted; the applicant filed a notice of appeal and grounds of appeal, and guided by Article 50 of the Constitution the court was satisfied she should be allowed to ventilate her case on appeal

Reasoning

The right of appeal flows from section 75 of the Civil Procedure Act read with Order 43 of the Civil Procedure Rules; orders not listed in Order 43 Rule 1(1) require leave under Rule 1(2). The application was filed within fourteen days of the impugned ruling. The court declined to go into the merits of the intended appeal, holding that the Article 50 right to be heard justified granting leave so the applicant could argue her case in the appellate court.

p. 5

Legal principles established

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  • Whether or not to grant leave to appeal is a judicial discretion that must be judicially considered
  • Leave to appeal from interlocutory orders restricts appeals from minor procedural matters not going to the root of the litigation
  • Leave will normally be granted where prima facie there are grounds of appeal meriting serious judicial consideration; a stronger case is needed where the order was discretionary
  • The court will refuse leave only where the applicant has no realistic prospects of succeeding on the appeal

Court orders

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  1. 1.Leave granted to the plaintiff to appeal against the Ruling and order of the court delivered on 9 December 2021
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 75
  • Civil Procedure ActSections 1A, 1B, 3A & 63E
  • Civil Procedure RulesOrder 43 Rules 1(1), 1(2), 1(3) and 3(1)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 50

Cases cited (5)

  • Kenya Shell Limited v Kobil Petroleum Limited
    [2006] eKLR

    Grant of leave to appeal is a judicial discretion to be judicially considered

  • Rene Dol v Official Receiver of Uganda
    [1954] 21(1) EACA 116

    Rationale for requiring leave - restricting appeals from minor interlocutory matters

  • Sango Bay Estates Ltd and others v Dresdner Bank AG
    [1971] EA 17

    Leave granted where grounds merit serious judicial consideration; stronger case needed for discretionary orders

  • Machira T/A Machira & Company Advocates v Mwangi & anor
    [2002] 2 KLR 391

    Leave refused only where no realistic prospects of success on appeal

  • Masore Nyangau & Co Advocates v Supplies & Services Limited

    Mentioned by respondent's counsel on leave to appeal

Jurisdiction invoked
Sections 1A, 1B, 3A & 63E Civil Procedure Act; Order 43 Rule 3(1), Order 42 Rule 6 and Order 51 Rule 1 Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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

Cite this brief

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Cite this brief

Caselaw, "Kigwe v Kigwe Limited & another", Case Analysis (2022). Environment & Land Case E032 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14815/eng@2022-11-10

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