Case ID:173034

John Mugambi t/a Mugambi & Company Advocates & another v Showcase Properties Limited [2021] eKLR

Case Metadata

Case Number:

Civil Case 436 of 2017

Parties:

John Mugambi t/a Mugambi & Company Advocates & Beatrice Kariuki t/a Beatrice Kariuki & Associates v Showcase Properties Limited

Date Delivered:

26 Mar 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

David Amilcar Shikomera Majanja

Citation:

John Mugambi t/a Mugambi & Company Advocates & another v Showcase Properties Limited [2021] eKLR

Advocates:

Mr Mbobu with him Mr Otenyo instructed by Makhandia and Makhandia Advocates for the Plaintiffs

Mr Mungai instructed by Mungai Kalande and Company Advocates for the Defendant

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Advocates:

Mr Mbobu with him Mr Otenyo instructed by Makhandia and Makhandia Advocates for the Plaintiffs

Mr Mungai instructed by Mungai Kalande and Company Advocates for the Defendant

History Advocates:

Both Parties Represented

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D. S. MAJANJA J.

CIVIL CASE NO. 436 OF 2017

BETWEEN

JOHN MUGAMBI T/A

MUGAMBI & COMPANY ADVOCATES...........................................1

ST

PLAINTIFF

BEATRICE KARIUKI T/A

BEATRICE KARIUKI & ASSOCIATES........................................... 2

ND

PLAINTIFF

AND

SHOWCASE PROPERTIES LIMITED.................................................DEFENDANT

RULING NO. 5

1. This is Ruling No. 5 in this matter. On 17

th

March 2021 I dismissed the Defendant’s Chamber Summons dated 17

th

February 2021 seeking, inter alia, an order setting aside the Decree issued on 13

th

November 2020 (“the Decree”). That application was made under

Order 22 rule 22

,

Order 21 rule 8

and

Order 51 rule 1

of the

Civil Procedure Rules

(“the

Rules

”) and

sections 1A

,

1B

and

3A

of the

Civil Procedure Act

(“the

Act

”). The Defendant has now filed the Chamber Summons dated 17

th

March 2021 under

section 11(3)

of the

Advocates Remuneration Order

and

section 3A

of the

Act

seeking leave to appeal.

2. The application is supported by the deposition of the defendant’s director, Francis Muhoro Gachanja, sworn on 17

th

March 2021. In the grounds on the face of the application and in the deposition, the Defendant states that it intends to appeal against the decision in the Court of Appeal and that it requires leave to appeal. It further states that the appeal to the Court of Appeal should be filed within 14 days from the date of the ruling and that the Defendant now,

“seeks leave to be formally granted by this Honourable Court.”

3. The Plaintiffs oppose the application through the Grounds of Opposition dated 18

th

March 2021 on several grounds. First, that the application is bad in law, misguided and a waste of judicial time. Second, that the appeal is a matter of right under

section 75

of the

Act

as read with

Order 43

rule 1

of the

Rules

and last, that

Rule 11(3)

of the

Advocates Remuneration Order

is only applicable in instances where there is a ruling on a Reference.

4. The two questions I have to determine are whether the appeal against the ruling and order of 17

th

February 2021 is a matter of right and if not, whether the court should grant leave to appeal.

5. At this stage I would agree with Counsel for the Plaintiffs that the decision appealed from is not under

Para. 11

of the

Advocates Remuneration Order

as this provision deals with a Reference from the decision from a Deputy Registrar in a taxation which is not the position here. The application subject of the ruling in question was in the course of interlocutory proceedings within a suit hence the provisions of the

Rules

apply. In this case therefore, the proper provision to invoke, as the Plaintiffs submit, is

section 75

of the

Act

as read with

Order 43

of the

Rules

.

Although the Defendant has cited the wrong provision, I will deal with the substance of the application.

6.

Order 43 rule 1

of the

Rules

enumerates the Orders, made under the

Rules

, from which an appeal is as of right. Under

rule 2

thereof, the right of appeal is with leave from the Orders not set out in

rule 1

. In the application now subject of the ruling from which leave is sought, the Defendant invoked

Order 22 rule 22

,

Order 21 rule 8

and

Order 51 rule 1

of the

Rules

and

sections 1A

,

1B

and

3A

of the

Act

. All these provisions do not fall within

Order 43 rule 1

of the

Rules

therefore leave is necessary in order for the Defendant to exercise its right of appeal.

7. Turning to the issue whether the court should grant leave to appeal, it is to be noted that since leave is not granted as matter of right, the applicant has to present a factual or legal basis for grant of such leave. In

Kenya Shell Limited v Kobil Petroleum Limited

NRB CA Civil Application No. 57 of 2006 [2006] eKLR

, the Court of Appeal held that,

“Whether or not the court would grant leave to appeal is a matter for the discretion of the court. As in all discretions exercisable by courts, however, it has to be judicially considered.”

The principles applicable for grant of such leave were summarized by the Court of Appeal in

Machira T/A Machira & Company Advocates vs. Mwangi & Another

[2002] 2 KLR 391

as follows:

The court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on the appeal. The use of the word “realistic” makes it clear that fanciful prospects or an unrealistic argument is not sufficient. When leave is refused, the court gives short reasons which are primarily intended to inform the applicant why leave is refused. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has no prospects of success. For example, the issue maybe one which the Court considers should be in the public interest, be examined by this court or, to be more specific, this Court may take the view that the case raises a novel point or an issue where the law is clarifying. There must however almost always be a ground of appeal which merits serious judicial consideration.

8. The Defendant’s deposition does not set out any basis upon which this court may exercise discretion in its favour. It does not set out or disclose the intended grounds of appeal upon which this court would exercise its discretion in its favour. The Defendant merely asserts that the court ought to grant leave because leave should be granted yet the appeal from the order is not a matter of right.

9. As the Defendant has failed to provide sufficient material for this court to favour it, leave to appeal is accordingly refused. Consequently, the application dated 17

th

March 2021 is now dismissed.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MARCH 2021.

D. S. MAJANJA

JUDGE

Court Assistant: Mr M. Onyango

Mr Mbobu with him Mr Otenyo instructed by Makhandia and Makhandia Advocates for the Plaintiffs.

Mr Mungai instructed by Mungai Kalande and Company Advocates for the Defendant.