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ELCAllowedNotice of Motion dated 20th December 2022· [2024] KEELC 5664 (KLR)

Ngugi & 5 others v Wanyoike & 6 others (Environment & Land Case 204 of 2017) [2024] KEELC 5664 (KLR)

Environment and Land Court
18 July 2024
LGL. GACHERU
3,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed the applicants' request for permission to appeal, confirming a single arguable issue is enough to secure leave.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (L. Gacheru J) determined a Notice of Motion dated 20th December 2022 by which the Plaintiffs/Applicants, advised by Gibson Kamau Kuria, SC, sought leave to appeal to the Court of Appeal against the Court's decision of 8th December 2022. That decision had declined to entertain the Plaintiffs' Memorandum of Appeal filed under Order 49 Rule 7 of the Civil Procedure Rules challenging the Deputy Registrar's refusal to issue them a certificate of delay, directing instead that review or a substantive appeal was the proper course. The application was brought under Order 43(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiffs argued they were condemned unheard, that their Article 48 right of access to justice was violated, and that the Deputy Registrar's refusal was an appealable ministerial act. The Defendants/Respondents opposed, contending that refusal of a certificate of delay is not among the decisions appealable under Order 49 rule 7, and characterising the Plaintiffs as indolent litigants pursuing endless applications since the judgment of 30th November 2020. The Court framed a single issue: whether the Applicants were entitled to the orders sought. Relying on Section 75 of the Civil Procedure Act and Order 43, the Court confirmed that leave is required for appeals from orders not appealable as of right, and applied the settled test that an intended appeal need only raise one arguable issue. Finding the grounds - natural justice, access to justice and the appealability of the Deputy Registrar's decision - worthy of consideration, the Court granted leave to file the appeal. Given the prolonged litigation since November 2020, each party was ordered to bear its own costs.

Key legal issues

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01

Whether leave to appeal is required and whether the intended appeal is arguable

Holding

Leave is required under Order 43(2) for appeals against orders made under Order 49, and the intended appeal raises arguable issues warranting leave.

Reasoning

Section 75 of the Civil Procedure Act lists orders appealable as of right; all other orders require leave of the court making the order or of the appellate court. The application was expressly brought under Order 43(2), so leave was a condition precedent. The court applied the test that an applicant need show an arguable appeal - one bona fide issue suffices - and found the grounds concerning natural justice, Article 48 access to justice and Order 49 worthy of appellate consideration.

p. 9

Legal principles established

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  • Leave is required to appeal orders not listed under Order 43(1), and the court whose leave is sought must be satisfied the prospective appeal raises issues worthy of judicial consideration.
  • A single arguable issue suffices for leave; it need not succeed on appeal.

Court orders

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  1. 1.Leave granted to the Plaintiffs/Applicants to file the appeal against the Court's decision dated 8th December 2022
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 75
  • Civil Procedure RulesOrder 43(1), (2), (3), (4); Order 49 Rule 7(2), (3)
  • Court of Appeal RulesRule 41
  • Constitution of KenyaArticle 48

Cases cited (14)

  • Sango Bay Estates and Another V Dresdner Bank
    [1971] EA 17
  • Speaker of the National Assembly V James Njenga Karume
    [1992] eKLR
  • Re Estate of Mbiyu Koinange (Deceased)
    [2015] eKLR
  • James Wangalwa & Another V Agnes Naliaka Cheseto
    (2012) eKLR
  • Selle V Motor Boat
    [1968] EA 123
  • Simon Kalachu v Yuasa International Limited & another
    [2021] eKLR
  • Peter Nyaga Muvake V Joseph Mutunga
    [2015] eKLR
  • Direct line Insurance Co. Ltd v Onyango
    (Civil Appeal E345 of 2022) [2022]
  • Serephen Nyasani Menge v Rispah Onsase
    [2018] eKLR
  • Stephen Omondi Juma v Sprocer Awuor Rabote
    [2022] eKLR
  • Nyutu Agrovet Ltd vs Airtel Networks Ltd
    [2015] eKLR
  • Vaghjiyani Enterprises Ltd v Osundwa & Company Advocate
    (Civil Application E234 of 2023) [2024] KECA 81 (KLR)
  • Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others
    [2014] eKLR
  • Cabinet Secretary Ministry of Health v Aura & 13 others
    (Civil Application E583 of 2023) [2024] KECA 2 (KLR)
Jurisdiction invoked
Order 43(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Ngugi & 5 others v Wanyoike & 6 others (Environment & Land Case 204 of 2017) [2024] KEELC 5664 (KLR)", Case Analysis (2024). Notice of Motion dated 20th December 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5664/eng@2024-07-18

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