Case ID:184873

Celina Nkirina & another v Susan Nkatha & 3 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 41 of 2020

Parties:

Celina Nkirina & Daniel Kirimi Mutua v Susan Nkatha, Teresia Kaindia Thirindi, Patrick Kamencu Robert & Martha Wanja Gitonga

Date Delivered:

27 Oct 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Celina Nkirina & another v Susan Nkatha & 3 others [2021] eKLR

Advocates:

Kimani for S.M. Kimani for plaintiff

Mbubuya holding brief for B.G. Kariuki for defendants

Court Division:

Environment and Land

County:

Meru

Advocates:

Kimani for S.M. Kimani for plaintiff

Mbubuya holding brief for B.G. Kariuki for defendants

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 ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. 41 OF 2020

CELINA NKIRINA ……………….………….…………………. PLAINTIFF

VERSUS

SUSAN NKATHA ………………………………..……… 1

ST

DEFENDANT

TERESIA KAINDIA THIRINDI ……………….……… 2

ND

DEFENDANT

PATRICK KAMENCU ROBERT ……………...………. 3

RD

DEFENDANT

MARTHA WANJA GITONGA ………………………… 4

TH

DEFENDANT

DANIEL KIRIMI MUTUA ……………………………………. PLAINTIFF

VERSUS

PATRICK KAMENCU ROBERT ……………………… 1

ST

DEFENDANT

SUSAN NKATHA ………………………………..……… 2

ND

DEFENDANT

TERESIA KAINDIA THIRINDI.........................................3

RD

DEFENDANT

RULING

1. By an application dated

12

th

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

10

th

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.

6. The orders made on

5.5.2021

were therefore made under

Order 40 Rules 1, 2 and 10 of Civil Procedures.

Appeals against the order thereof are appealable as a matter of right. Consequently I find the application dated 12.5.2021 without merit. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27

TH

DAY OF OCTOBER, 2021

In presence of:

Kimani for S.M. Kimani for plaintiff

Mbubuya holding brief for B.G. Kariuki for defendants

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE