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Court of AppealStruck OutCivil Application No 80 of 1990

Javer v Pioneer General Assurance Society Ltd [1991] KECA 9 (KLR)

Court of Appeal
16 January 1991
1,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Filing a notice of appeal without required court leave wastes time and money — the Court of Appeal struck out Javer's appeal entirely, with costs.

What this practically means

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Executive summary

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The applicant failed in his application for an interlocutory injunction against eviction in the High Court (Tank J, 16 October 1990) and immediately made an informal oral application for an injunction maintaining status quo pending appeal. Tank J granted a stay pending appeal on terms requiring monthly deposits of Shs 150,000, by ruling of 22 October 1990. The applicant filed a notice of appeal against that conditional order without obtaining leave. On a notice of motion under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of the deposit condition or restraint of eviction, the respondent raised a preliminary point of law: no appeal lay as of right from a decision granting stay on terms under order XLI rule 4, so leave within 14 days was required and had not been sought. The Court of Appeal held that the oral application was made under order XLI rule 4(3), that under order XLII of the Civil Procedure Rules no appeal lies as of right from any decision under order 41 rule 4 or its sub-rules, and that an order of stay pending appeal can be granted by the High Court under order 41 rule 4 only. The applicant's contention that the oral application was a mere extension of the order XXXIX proceedings was rejected, those proceedings having been exhausted on 16 October 1990. Leave being imperative but neither sought nor obtained, the notice of appeal was improperly filed. The court declined to consider the merits. Both the notice of appeal dated 25 October 1990 and the notice of motion were struck out with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of motion application before the Court was competent, given that no leave to appeal against the ruling of 22 October 1990 was sought or obtained before filing the notice of appeal
  2. 2.Whether the informal oral application for stay made on 16 October 1990 was a mere extension of the chamber summons proceedings under order XXXIX, so that an appeal lay as of right
  3. 3.Whether the court should go into the merits of the intended appeal and the point that rule 5(2) of the Court of Appeal Rules does not allow an application to vary the terms of an injunction order granted by the High Court

Key legal issues

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01

Whether an appeal lay as of right from the conditional stay order of 22 October 1990

Holding

No. The informal oral application for stay was made under order XLI rule 4(3), and no appeal lies as of right from any decision under order 41 rule 4 or its sub-rules; leave was imperative and was not obtained.

Reasoning

The court found from the record that the oral application made immediately after the ruling of 16 October 1990 was for an injunction maintaining status quo pending appeal, which falls squarely under order 41 rule 4(3) empowering a court to order stay on terms without a formal application. Since order 42 excludes appeals as of right from decisions under order 41 rule 4 and its sub-rules, the applicant needed leave under rule 39 of the Court of Appeal Rules within 14 days, which was neither sought nor obtained.

p. 3
02

Whether the oral stay application was a mere extension of the order XXXIX chamber summons proceedings

Holding

It was not. The chamber summons proceedings under order XXXIX were exhausted and concluded on 16 October 1990 when the ruling dismissing the application was delivered; the subsequent oral stay application was a distinct proceeding under order XLI rule 4(3).

Reasoning

The court rejected the applicant's characterisation of the oral application as a continuation of the injunction proceedings. Once Tank J delivered his ruling on 16 October 1990 dismissing the chamber summons and discharging the ex-parte injunction, those proceedings were concluded. The learned judge's ruling of 22 October 1990 made clear he was granting an interim injunction on terms pending appeal, which is a stay pending appeal grantable only under order 41 rule 4.

p. 3

Legal principles established

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  • No appeal lies as of right from a decision of the High Court made under an application under order XLI rule 4 of the Civil Procedure Rules; leave of the court must first be obtained before filing a notice of appeal from such a decision.
  • An order of stay pending appeal can be granted by the High Court under order XLI rule 4 of the Civil Procedure Rules only.
  • An application for leave to appeal under rule 39 of the Court of Appeal Rules must be made within 14 days of the decision.

Court orders

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  1. 1.The notice of appeal dated 25 October 1990 against the decision of Tank J delivered on 22 October 1990 is struck out
  2. 2.The notice of motion application dated 25 October 1990, founded on the said notice of appeal, is struck out
  3. 3.Costs of both awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
MA
majority
CO
majority
On appeal from
High Court of Kenya at Nairobi
Civil Case No 4168 of 1990
Jurisdiction invoked
Court of Appeal Rules rule 5(2)(b); Appellate Jurisdiction Act (cap 9); section 3A Civil Procedure Act (cap 21)

Relief refused

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Stay of that part of the High Court order requiring deposit of Shs 150,000 per month, or alternatively restraint of the respondent from evicting the applicant from the suit premises

The notice of appeal founding the application was filed without the leave of the court which was imperative, making it improperly filed and of no effect; the court declined to consider the merits

p. 3

Costs

Both the notice of appeal and the notice of motion application struck out with costs awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

under order 42 of the Civil Procedure Rules no appeal lies as of right from any decision of the Court under an application under order 41 r 4 and from any sub-rules of the said rule.
p. 3Right of appeal from order XLI rule 4 decisions
An order of stay pending appeal can be granted by the High Court under order 41 r 4 of Civil Procedure Rules only.
p. 3Exclusive statutory basis for stay pending appeal in the High Court
It was, therefore, imperative for the applicant to have obtained leave of the Court before he filed the notice of appeal dated 25.10.90 against the decision of the High Court given on 22.10.90.
p. 3Requirement of leave before appealing a conditional stay order
In the result we order that the notice of appeal dated 25.10.90 against the decision of Tank, J delivered on 22.10.90 together with this notice of motion application also dated 25.10.90, founded on the said notice of appeal be both struck out with costs awarded to the respondent.
p. 3Final orders - striking out the notice of appeal and the application

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, "Javer v Pioneer General Assurance Society Ltd [1991] KECA 9 (KLR)", Case Analysis (1991). Civil Application No 80 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/9/eng@1991-01-16

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