Khator & another (As administrators of the Estate of Tima and Fatuma, children of Ali Bashir (Deceased)) v Ahmed & 2 others
The bottom line
#Kenya's Environment and Land Court allowed a defendant to appeal a land ruling, but only after getting the court's special permission first.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal is required for the orders of February 16, 2022
Leave is required because the orders were made under Order 20 rule 49, which is not listed in Order 43 rule 1 as appealable as of right.
The chamber summons determined by the ruling of February 16, 2022 was brought under Order 20 rule 49 of the Civil Procedure Rules and sections 1A and 3A of the Civil Procedure Act. Order 43 rule 1 lists orders appealable as of right, and orders under Order 20 rule 49 are not among them; an appeal lies only with leave from any other order. Since no oral leave application was made at delivery, the motion was the proper route.
Whether the application was filed timeously
The application dated March 1, 2022 and filed March 2, 2022 was within the 14-day window under Order 43 rule 1(3) and was filed without unreasonable delay.
The court relied on its receiving stamp and the e-receipt on the record to confirm the filing date. The application was deposed and submitted to be within 14 days of the ruling of February 16, 2022, in compliance with Order 43 rule 1(3), and the court found it was filed without unreasonable delay.
Whether a reasonable case for leave was made
Leave was merited; no reasonable cause was shown to bar the defendant from approaching the Court of Appeal, and the plaintiff will have his day in court on the appeal.
The court held that no reasonable cause had been presented to lock the 1st defendant out of the Court of Appeal. It also rejected the plaintiff's approbating-and-reprobating argument, noting the share entitlement had been determined in the judgment of October 31, 2019, so registering the 1/6th share did not disentitle the defendant to leave.
Legal principles established
#- Orders made under Order 20 rule 49 of the Civil Procedure Rules are not among those where an appeal lies as of right; leave of the court is required.
- Where no oral application for leave was made at delivery of the ruling, a party may properly move the court for leave by notice of motion.
Court orders
#- 1.Leave to appeal be and is hereby granted.
- 2.The costs of the application abide the outcome of the appeal.
- Jurisdiction invoked
- Order 43 rule 1(2) and (3) and Order 51 rule 1 of the Civil Procedure Rules; sections 1A, 1B, 3A and 75 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khator & another (As administrators of the Estate of Tima and Fatuma, children of Ali Bashir (Deceased)) v Ahmed & 2 others", Case Analysis (2022). Environment & Land Case 23 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15609/eng@2022-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.