Celina Nkirina & another v Susan Nkatha & 3 others [2021] KEELC 1172 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU ELC NO. 41 OF 2020 CELINA NKIRINA ……………….………….…………………. PLAINTIFF VERSUS SUSAN NKATHA ………………………………..……… 1ST DEFENDANT TERESIA KAINDIA THIRINDI ……………….……… 2ND DEFENDANT PATRICK KAMENCU ROBERT ……………...………. 3RD DEFENDANT MARTHA WANJA GITONGA ………………………… 4TH DEFENDANT DANIEL KIRIMI MUTUA ……………………………………. PLAINTIFF VERSUS PATRICK KAMENCU ROBERT ……………………… 1ST DEFENDANT SUSAN NKATHA ………………………………..……… 2ND DEFENDANT TERESIA KAINDIA THIRINDI.........................................3RD DEFENDANT RULING 1. By an application dated 12th May 2021 the plaintiff seeks leave to appeal against an order made on 5.5.2021. The application is premised under Section 75 of the Civil Procedure Rules, Order 43 rule 1 (2) and 3 of the Civil Procedure Rules. 2. It is submitted the order made on 5.5.2021 is not appealable as a matter of right; that the applicant did not orally seek leave at the time the ruling or order was made due to Covid protocols; that the proceedings were not conducive or convenient for the plaintiff to make an oral application and that it is not necessary to have a supporting affidavit to explain the law hence the application is not supported by any affidavit. Lastly the applicant insists the application is made within prescribed statutory timelines and there has been no delay to explain away. 3. Section 75 (1) of the Civil Procedure Act provides for orders against which an appeal would lie as of right and or with leave of the court. 4. Order 43 of the Civil Procedure Rules on the other hand gives a long list from which an appeal lies as of right. These includes Orders 1, 2, 3, 7, 8, 10, 15, 19, 22, 23, 24, 25, 26, 28, 34, 35, 40, 42, 50, 52, 53. Under Order 43 (2) it is provided that an appeal shall lie with the leave of court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are listed, leave to appeal must be sought and obtained before such an appeal can be lodged. 5. In the instant case the plaintiff brought a notice of motion dated 10th September 2020 under Sections 1A, 3A of the Civil Procedure Rules and Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules seeking for a mandatory injunction. The court considered the said application and rendered its ruling on 5.5.2021 in which it dismissed it since there was a regular order or decree from a court of concurrent jurisdiction – the High Court sitting in a succession cause at Meru.

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