TULIP PROPERTIES LIMITED v NOOR MOHAMED HASSAN, DAVID MWENJE, COMMISSIONER OF LANDS & REGISTRAR OF TITLES [2008] KEHC 1319 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

ELC Case 1403 of 2007

TULIP PROPERTIES LIMITED……...............……………………...PLAINTIFF

VERSUS

MOHAMED KORIOW NUR

SIMON KIPRONO LABOSO

MACDONALD LIJOODI MARAKA

NOOR MOHAMED HASSAN………………...…………….1ST DEFENDANT

DAVID MWENJE……………………………………………2ND DEFENDANT

THE COMMISSIONER OF LANDS………....…………….3RD DEFENDANT

THE REGISTRAR OF TITLES……..……………………..4TH DEFENDANT

R U L I N G

Before me is a Notice of Motion brought by the 1st Defendant seeking leave to appeal against the ruling of this court which was delivered on 3rd October 2008.  The application is based on the grounds as stated on the body of the Notice of Motion and supported by an affidavit sworn by Karen Mate learned Counsel for the Applicant.  What is sought is a judicial discretion.  For proper administration of justice such an application for leave to appeal against an interlocutory order ought to be made immediately after the delivery of the ruling or at most soon thereafter.

The ruling was delivered on 3rd October 2008 and the Applicant did not show any indication that he intended to apply for leave to appeal against the said ruling.  She participated in selecting the next date for further hearing of the suit which was agreed by all counsel to be suitable for their diaries and they all agreed by consent that PW1 be availed for further examination in chief on 22nd October 2008.

This application was brought on 16th October 2008 under certificate of urgency which is about 2 weeks later.  This is obviously inordinate delay.  Counsel for the Applicant submitted that after the ruling was delivered she had not received instructions to appeal against the ruling and by the time the instructions were received time to appeal was running out and delay was caused due to preparation of the Notice of Appeal which has already been filed.  With due respect to counsel an appeal or notice of appeal filed before leave was granted is incompetent.

It is conceded by counsel and rightly so that there is no automatic right to appeal.  It is now settled that the decision whether or not to grant leave to appeal is essentially discretionary.

The Applicant has clearly not placed sufficient material before me to enable me exercise my unfettered discretion in their favour.  In the result I dismiss the application with no order as to costs.

Dated and delivered at Nairobi this 22nd day of October 2008.

J. L. A. OSIEMO

JUDGE