Kilonzo v Kivoto & another
The bottom line
#A Kenyan court threw out a land appeal delayed for over two years, warning that appeals from preliminary objection rulings need special permission first.
What this practically means
#Executive summary
#Key legal issues
#Dismissal of appeal for want of prosecution
The appeal was dismissed for want of prosecution as the delay of over 2½ years was inordinate and inexcusable
The appellant blamed his advocate's death in 2021 and Covid-19, but gave no date of death or knowledge of it; the firm had other advocates who could have taken up the matter. Courts had introduced virtual hearings from the second half of 2020, so the pandemic did not excuse inaction through 2021 and beyond. The lower court suit was left hanging.
Competency of appeal from a preliminary objection ruling
The appeal was incompetent because leave to appeal, required under section 75(1) CPA and Order 43 rule (2) and (3) CPR, was never sought or granted
The court examined section 75(1) of the Civil Procedure Act and Order 43 rules (2) and (3) of the Civil Procedure Rules, which restrict appeals as of right to specified orders. A ruling dismissing a preliminary objection is not among them; leave must be sought from the court making the order within 14 days. The record showed no leave was applied for or granted, rendering the appeal incompetent and an abuse of process.
Legal principles established
#- A ruling on a preliminary objection is not appealable as of right; leave of court must first be sought and granted
- An appeal filed without the requisite leave is incompetent and an abuse of the court process
Court orders
#- 1.The respondents' notice of motion dated 20th July, 2022 allowed as prayed under prayer (1), dismissing the appellant's appeal for want of prosecution
- 2.Costs of the application awarded to the respondents
- On appeal from
- Principal Magistrate's Court at Kyuso
- Kyuso ELC No. 13 of 2019
- Jurisdiction invoked
- Section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules (appellate jurisdiction over subordinate court rulings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilonzo v Kivoto & another", Case Analysis (2022). Environment and Land Appeal E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14950/eng@2022-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.