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High CourtStruck OutKisumu High Court Civil Appeal (arising from KSM CMCC No. 449 of 2004)· None stated

Appeal from KSM CMCC No. 449 of 2004 – Ruling of 25.8.2005 (incompetent appeal)

High Court of Kenya
31 May 2006
JMJ. W. Mwera
760 words in judgment
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The bottom line

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The High Court in Kisumu struck out an appeal filed without the required permission, confirming that a right to appeal is not the same as permission to appeal.

What this practically means

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Executive summary

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This was a High Court appeal from a ruling of the Kisumu chief magistrate's court dated 25.8.2005 in KSM CMCC No. 449 of 2004, whereby the defendant's motion was dismissed after the defendant failed to appear for examination on oath as ordered under Order 18 rule 2 of the Civil Procedure Rules. Before the High Court, the appellant moved under various provisions including Order 41 rule 4 and Section 3A of the Civil Procedure Act, seeking enlargement of time, a stay of execution of a warrant of arrest and of proceedings in the lower court, a stay of the ruling appealed from, and alternatively a temporary injunction and directions. The respondent's counsel objected that the appeal was incompetent because leave to appeal was required under Order 42 of the Civil Procedure Rules and had not been sought. Counsel for the appellant conceded the leave requirement but argued that the trial magistrate's advisement of a right of appeal within 28 days amounted to leave, or alternatively that the High Court could grant leave itself. The court rejected both arguments, holding that the right to appeal is not the same as leave to appeal, and that a court has no discretion to allow an incompetent appeal to proceed. The court also held that the respondent's incoming firm of advocates required leave under Order 3 rule 9A to come on record, which had not been obtained, though this did not alter the outcome. The appeal was declared a non-starter with no orders as to costs, on 31.5.2006.

Key legal issues

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01

Leave to appeal against the ruling of 25.8.2005

Holding

Leave was mandatory under Order 42 rule 2 and was not obtained; the appeal was incompetent

Reasoning

The court held that to appeal against the ruling dismissing the applicant's motion for non-production for cross-examination, leave under Order 42 rule 2 was required. Counsel conceded this but argued leave was granted on 25.8.2005 or could be granted by the court. The court rejected both arguments: the magistrate's advisement of a 28-day appeal right was not leave, and the court cannot salvage an incompetent appeal.

p. 2
02

Representation on record for the respondent

Holding

The incoming firm needed leave under Order 3 rule 9A to come on record and, lacking it, was a stranger to the proceedings

Reasoning

The firm of M/s Odhiambo Owiti & Co. Advocates was on record in the lower court and presumed to remain on record on appeal under Order 3 rule 6. Nishi Pandit & Co. Advocates therefore needed leave under Order 3 rule 9A to substitute; counsel conceded this was not done, rendering the firm a stranger, though this did not affect the outcome.

p. 2

Legal principles established

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  • An appeal against an interlocutory ruling requiring leave under Order 42 rule 2 is incompetent without such leave, and the court has no discretion to let it proceed
  • The right to appeal is not the same as leave to appeal

Court orders

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  1. 1.The appeal was held to be incompetent and a non-starter
  2. 2.No orders as to costs
  3. 3.It is so ordered on 31.5.2006
On appeal from
Chief Magistrate's Court, Kisumu
KSM CMCC No. 449 of 2004
Jurisdiction invoked
Appeal under the Civil Procedure Act (Section 3A) and Civil Procedure Rules (Order 42) from the subordinate court ruling

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, "Appeal from KSM CMCC No. 449 of 2004 – Ruling of 25.8.2005 (incompetent appeal)", Case Analysis (2006). Kisumu High Court Civil Appeal (arising from KSM CMCC No. 449 of 2004). Source:

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