Taib v Said (Civil Appeal (Application) E064 of 2023) [2025] KECA 43 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can grant fresh leave to appeal after a High Court refusal, and allowed this 27-year-old execution dispute to proceed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's preliminary objection on jurisdiction and res judicata defeats the application for leave to appeal under Rule 39(b)/Rule 41(b)(ii)
- 2.Whether this Court has original jurisdiction to hear afresh an application for leave to appeal where leave was refused by the High Court
- 3.Whether the intended appeal raises issues which merit serious consideration so as to warrant the grant of leave to appeal
Key legal issues
#Jurisdiction under Rule 39(b)/Rule 41(b)(ii) of the Court of Appeal Rules
The Court has original jurisdiction to determine a fresh application for leave to appeal after refusal by the High Court; the application is not an appeal, reference or review, and is not res judicata.
The Court noted that Rule 41(b)(ii) (formerly Rule 39(b)) expressly permits a party whose leave application was refused by the High Court to apply afresh to the Court of Appeal within fourteen days of the refusal. The only condition is the fourteen-day timeline, which Laibuta JA had already found satisfied. Following Zeinab Khalifa, the jurisdiction is original, akin to Rule 5(2)(b), not appellate or review, so res judicata under section 7 of the Civil Procedure Act does not apply.
Principles for grant of leave to appeal
Leave will normally be granted where the intended appeal raises grounds which merit serious judicial consideration; the court will refuse leave only if the applicant has no realistic prospects of success, save where public interest or a novel point is engaged.
Adopting Zeinab Khalifa, which drew on Sango Bay Estate Ltd v Dredner Bank A.G. and Machira t/a Machira & Company Advocates v Mwangi, the Court held that the discretion to grant leave turns on whether the draft memorandum of appeal raises arguable issues. The parties' competing positions on when time began to run for execution demonstrated an arguable point; even a single issue meriting serious judicial consideration suffices.
Scope of the present application
The only prayer before the full Bench was leave to appeal; the merits of the impugned High Court ruling, including whether the Notice to Show Cause was time-barred under the Limitation of Actions Act, fall for determination in the substantive appeal.
An earlier ruling by Laibuta JA on 10th November 2023, clarified on 30th November 2023, had found the notice of appeal and motion for leave filed in time, struck out the extension-of-time prayer as superfluous, and directed that the leave prayer proceed before a full Bench. The Court therefore confined itself to the leave question and declined to engage with the limitation and execution arguments canvassed by the parties.
Legal principles established
#- Where an application for leave to appeal has been made to the High Court and refused, the Court of Appeal has original jurisdiction to hear a fresh application for leave to appeal, provided it is made within fourteen days of such refusal; such an application is not res judicata of the High Court refusal.
- The main consideration in granting or refusing leave to appeal is whether the intended appeal raises issues which merit serious consideration; even a single arguable issue suffices.
Court orders
#- 1.The application is allowed and the Applicant is granted leave to appeal to the Court of Appeal against the ruling and orders of the High Court (Chepkwony J.) dated 23rd August 2022
- 2.The Applicant's Notice of Appeal dated 25th August 2022 is admitted to the record
- 3.The Applicant is directed to file and serve the record of appeal within 60 days from the date of the ruling
- 4.The costs of the application shall abide the result of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCC No. 88 of 1996
- Jurisdiction invoked
- Rule 39(b) of the Court of Appeal Rules, 2010 (now Rule 41(b)(ii) of the Court of Appeal Rules, 2022) - original jurisdiction to grant leave to appeal where leave has been refused by the High Court
Relief refused
#Extension of time to apply for leave to appeal (prayer as originally framed)
The prayer had been dealt with in the earlier ruling of Laibuta JA of 10th November 2023, which struck it out as superfluous upon finding the notice of appeal and the motion for leave were filed in time
Determination of the merits of the impugned High Court ruling (time-bar of the Notice to Show Cause)
Merits of the ruling can only be addressed in the substantive appeal, if leave is granted
Costs
The costs of this application shall abide the result of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court therefore has original jurisdiction to hear and determine an application for leave to appeal in such circumstances, as explained in Zeinab Khalifa & 4 others vs Abdulrazak Khalifa & another [supra]
We accordingly find that the Respondent’s objections are not supported by law, nor is this application res judicata, since this Court has jurisdiction to hear and determine the Applicant’s application for leave to appeal afresh.
The main consideration in determining whether to grant or refuse an application for leave to appeal is whether the intended appeal raises issues which merit serious consideration.
In the circumstances we allow this application and grant the Applicant leave to appeal to this Court. We accordingly admit the Applicant’s Notice of Appeal dated 25ᵗʰ August 2022 to the record, and direct the Applicant to file and serve the record of appeal within 60 days from the date of this ruling.
Issues in the judgment
#The judgment refers inconsistently to the date of the impugned High Court ruling, variously as 23rd August 2022, 3rd August 2022, and 25th/29th August 2022 for the Notice of Appeal (dated 25th in paragraph 1 and 3, but 29th in Laibuta JA's ruling quoted).
The judgment refers to Rule 41(b)(ii) of the Court of Appeal Rules of 2022, but the quoted text labels it as sub-rule (b) with subparagraph (ii); the Applicant in paragraph 7 also cited 'Rule 39 (b) of the Court of Appeal Rules of 2010' as conferring original jurisdiction, while the earlier ruling is quoted as referencing 'rule 41(b) (ii)' for filing timelines.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taib v Said (Civil Appeal (Application) E064 of 2023) [2025] KECA 43 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 22nd July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/43/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.