Law Society of Kenya v Commissioner of Lands & 2 others

Court of Appeal, at Nakuru February 28, 2003

Kwach, Tunoi & Shah JJ A

Civil Application No NAI 181 of 2002

 (Application for an injunction or stay of execution from a Ruling and order of

High Court at Nakuru and delivered at Nairobi (Ombija J) dated 19th December, 2001

 in

High Court Civil Case No 464 of 2000.

Societies — suit by a society - Law Society of Kenya — nature of the society — whether the society should sue under Societies Act (cap 108) — suits by an ordinary society — requirement to invoke order 1 rule 8 of the Civil Procedure Rules.

Civil Practice and Procedure - parties to suits - statutory body established under an Act of Parliament - Law Society of Kenya Act (cap 18) - whether Law Society of Kenya can sue in its own name or it should sue as a society.

The Law Society of Kenya brought an application to maintain the status quo in relation to land upon which the Eldoret High Court buildings stood. The society was aggrieved by the allocation of that land to the second respondent herein.

Initially the superior court had ruled that the society had no locus standi to sue as it had done as it was not a party whose rights were infringed or injured.

Held:

1.The Law Society of Kenya is a statutory body created by an Act of Parliament, viz, the Law Society of Kenya Act (cap 18).

2.As it is a body with a common seal, the Law Society of Kenya need not sue as a society under the Societies Act. (cap 108)

3.An ordinary society wishing to sue would have to invoke the provision of order 1 rule 8 of the Civil Procedure Rules.

Application allowed.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 8

Agricultural Finance Corporation v Rono

Court of Appeal, at Nakuru February 28, 2003

Tunoi, Bosire & Owuor JJ A

Civil Application No NAI 340 of 2002

(Application to strike out the Notice of Appeal and Record of Appeal in

Civil Appeal No 223 of 2002 from ruling and order of the High Court

at Eldoret (Tunya J) dated 11th July, 2002 and dated 28th August, 2000

in High Court Civil Suit No 14 of 2002.)

Civil Practice and Procedure - appeal - striking out – where injunction is granted under section 3A of Civil Procedure Act (cap 21) – whether leave of the court is required to appeal against such injunction – whether leave is required to appeal from orders made under order XXXIX of the Civil Procedure Rules.

The applicant in this case sought to have an appeal filed by the respondent struck out. The applicant averred that since the respondent had applied before the superior court for both temporary and mandatory injunctions, he was obliged to seek leave to appeal against the mandatory injunction, as the trial judge said he would grant it pursuant to the provisions of section 3A of the Civil Procedure Act (cap 21).

The respondent’s application to the superior court was expressed to be brought under section 3A of the Civil Procedure Act and order XXXIX rules 1 and 9 of the Civil Procedure Rules.

Held:

1. Section 3A of the Civil Procedure Act (cap 21) merely preserves the inherent power of the court, but does not specifically authorize the bringing of any motion under it.

2. No leave to appeal is required for appeals from orders made pursuant to an application under Order XXXIX of the Civil Procedure Rules (cap 21 Sub Leg).

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub leg) rule 80

2. Civil Procedure Act (cap 21) section 3A

3. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 7; order XXXIX rule 1, 9