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Court of AppealOtherCivil Appeal No. 93 of 2010

Eliud Murage Wambu v Joseph Muriithi Stanley & another [2011] KECA 83 (KLR)

Court of Appeal of Kenya
2 December 2011
SBS.E.O. BosirePWP.N. WakiAVAlnashir Visram
1,162 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal because you cannot appeal an order you asked for yourself — a costly lesson in choosing the right decision to challenge.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nyeri (Bosire, Waki and Visram JJ.A.) determined a motion dated 12th May 2010 by John K.J. Mwai seeking to strike out Civil Appeal No. 93 of 2010 filed by Eliud Murage Wambu. The underlying suit sought nullification of the transfer of land known as L.R. No. 1/KAMONDO/969, and was dismissed by Makhandia, J. on 26th November 2007. The unsuccessful plaintiff's application for review came before the same judge on 23rd November 2009 but was never heard; counsel and the court indicated it was incompetent, and the applicant himself withdrew it, whereupon it was 'marked as withdrawn with no order as to costs'. He then filed a notice of appeal against that order and lodged a record of appeal whose memorandum mixed grounds against the withdrawal order with grounds against the 2007 judgment. The Court held that the withdrawal order was made at the respondent's own request, was not made pursuant to O.XLV as his motion was never heard, and falls under none of the appealable orders listed in O.43 of the Civil Procedure Rules; moreover it would defy common sense to appeal an order made in one's own favour. The Court also observed the dilemma courts face with unrepresented litigants who refuse guidance. Finding the appeal hopelessly incompetent, the Court allowed the application, struck out Civil Appeal No. 93 of 2010, and awarded costs of both the appeal and the motion to John K.J. Mwai. The decision binds subordinate courts and the High Court on the non-appealability of orders made at a party's own request under the withdrawal procedure.

Questions the Court framed

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

  1. 1.Whether an appeal lies against the order of 23rd November 2009 marking the applicant's review application as withdrawn with no order as to costs
  2. 2.Whether the memorandum of appeal could challenge the High Court judgment of 26th November 2007 from which the appeal was not properly brought

Key legal issues

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01

Right of appeal against a withdrawal order

Holding

The order of 23rd November 2009, which marked the respondent's review application as withdrawn with no order as to costs at his own request, is not appealable and does not fall under any of the orders listed in O.43 of the Civil Procedure Rules.

Reasoning

The order was made at the request of the respondent himself, who was the applicant in the withdrawn motion. His motion was never heard, so the order was not made pursuant to O.XLV (formerly O.XLIV). The respondent did not complain that the withdrawal order was improperly made; he merely sought review of the 2007 judgment. Challenging an order made in one's own favour defies common sense, rendering the appeal incompetent.

p. 2
02

Scope of the appeal vs the decision challenged

Holding

The memorandum of appeal impermissibly mixed grounds challenging the 23rd November 2009 order with grounds challenging the substantive judgment of 26th November 2007, from which no appeal lay in the circumstances.

Reasoning

The notice of appeal and intituling referred to the 23rd November 2009 order, but several grounds in the home-made memorandum attacked the judgment of 26th November 2007. The court noted the variance and attributed it to the unrepresented litigant's lack of proper legal guidance, holding that the appeal was a mix-up and incompetent overall.

p. 2

Legal principles established

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  • No appeal lies against an order made in favour of a party at that party's own request, where the order does not fall under any of the listed appealable orders.

Court orders

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  1. 1.The application dated 12th May 2010 is allowed
  2. 2.Civil Appeal No. 93 of 2010 is struck out
  3. 3.Costs of the struck out appeal and of the motion are awarded to the applicant, John K.J. Mwai

The bench

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

SB
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 113 of 2002
Jurisdiction invoked
Appeal to the Court of Appeal from the High Court under the applicable appellate provisions of the Civil Procedure Rules (O.43, formerly O.42) as argued by the parties

Relief refused

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Sustenance of the appeal (respondent sought to maintain Civil Appeal No. 93 of 2010)

The order appealed from was made at the respondent's own request and falls under no provision conferring a right of appeal; the appeal is incompetent

p. 2

Costs

Costs of the struck out appeal and the motion dated 12th May 2010 awarded to the applicant, John K.J. Mwai

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 O.43, of the Civil Procedure Rules (formerly O.42), the Order of 23rd November 2009, cannot possibly be placed under any of the listed provisions.
p. 2Appealability of the withdrawal order
Besides, the order appealed from was made in favour of the respondent and it would militate against common sense to challenge such an order.
p. 2No appeal against an order made in a party's favour at that party's request
In the result, we allow the application dated 12th May 2010, strike out Civil Appeal No.93 of 2010, with costs of the struck out appeal and the aforesaid motion to the applicant, John K.J. Mwai.
p. 3Final orders - striking out the appeal
In the foregoing circumstances, it is clear that this appeal is hopelessly incompetent and no proper purpose would be served if it is sustained.
p. 2Incompetency of the appeal

Issues in the judgment

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minor

The judgment refers to Eliud Murage Wambu as 'the respondent' and John K.J. Mwai as 'the applicant' in the motion, while the cause title designates Wambu as appellant and the two defendants as respondents; roles are used inconsistently throughout.

minor

The notice of appeal describes the decision appealed against as a 'RULING/JUDGMENT' of 23rd November 2009, but the memorandum also attacks the judgment of 26th November 2007, creating ambiguity as to the decision under appeal.

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, "Eliud Murage Wambu v Joseph Muriithi Stanley & another [2011] KECA 83 (KLR)", Case Analysis (2011). Civil Appeal No. 93 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/83/eng@2011-12-02

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