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High CourtDismissedNot stated in judgment (application dated 18th October, 2019; relates to Embu CMCC No. 184 of 2014)

Joseph Gitonga Ireri (Treasurer) for the Applicant v Respondent

High Court of Kenya
23 September 2020
FMF. Muchemi
937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If the High Court is acting as an appellate court, you usually do not need special permission to appeal a decision; the right is automatic.

What this practically means

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Executive summary

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The applicant, through its treasurer Joseph Gitonga Ireri, applied by notice of motion dated 18th October 2019 for leave to appeal out of time against a judgment of the High Court at Embu delivered on 17th October 2019, invoking Section 75(1) of the Civil Procedure Act, and sought costs. The applicant contended it was aggrieved by the judgment, that the judge had failed to consider key and fundamental issues, and that leave was required before lodging an appeal to the Court of Appeal. The respondent opposed, deposing that the application was misplaced and aimed at delaying his suit in Embu CMCC No. 184 of 2014, which had never been set down for hearing, and that the applicant had not demonstrated what it wished to appeal against or the injustice it would suffer. The application was disposed of by written submissions. The sole issue was whether the application was merited. Following the Court of Appeal's decision in Wangu Njagi v James Mwai, Muchemi J held that Section 75 of the Civil Procedure Act applies only to appeals from the High Court in its original jurisdiction; where the High Court acts in its appellate jurisdiction, the relevant provision is Section 72(1), which confers an automatic right of appeal to the Court of Appeal on grounds of law, without any requirement of leave. The application was therefore misconceived and was dismissed with costs.

Key legal issues

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01

Whether leave to appeal out of time was required for an appeal against a judgment delivered by the High Court in its appellate jurisdiction

Holding

The application was misconceived; Section 75 applies only to appeals from the High Court's original jurisdiction, whereas appeals from its appellate jurisdiction are governed by Section 72 and require no leave.

Reasoning

Relying on Wangu Njagi v James Mwai, the court held that Sections 66 and 75 of the Civil Procedure Act govern appeals from decrees and orders of the High Court in its original jurisdiction. Where the High Court sits in appellate jurisdiction, the applicable provision is Section 72(1), which confers an automatic right of appeal to the Court of Appeal on specified grounds of law, procedure or failure to determine material issues, without any requirement of leave.

p. 1

Legal principles established

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  • Leave to appeal to the Court of Appeal under Section 75 of the Civil Procedure Act is required only where the order appealed from was made by the High Court in exercise of its original jurisdiction; appeals from the High Court in its appellate jurisdiction lie as of right under Section 72 on grounds of law only.

Court orders

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  1. 1.The application dated 18th October, 2019 seeking leave to appeal out of time is dismissed with costs
Jurisdiction invoked
Section 75(1) of the Civil Procedure Act (application for leave to appeal out of time)

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, "Joseph Gitonga Ireri (Treasurer) for the Applicant v Respondent", Case Analysis (2020). Not stated in judgment (application dated 18th October, 2019; relates to Embu CMCC No. 184 of 2014). Source:

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