I Msumi J: This is an application for leave to appeal to the Court of Appeal. The matter came to this court as an appeal from the Dis-
trict Court. For reasons stipulated in the Order, this court presided by Masanche, J A refused to admit the appeal to hearing hence ordered it to be struck out of the registry. In this application the applicant is seeking leave to appeal to the Court of Appeal. In support of this application the learned counsel advanced three arguments. First he pointed out B that the land in dispute was unregistered and so the matter ought to have started in primary court. The trial District Court had no jurisdiction on the case. Secondly, he is submitting that since the subject matter in this case is land, judgment in default could only be entered after ex-parte proof by the plaintiff. There was no such proof in the C present case. And lastly the learned counsel is challenging this court's holding that the rejected appeal is time barred.
It is evident that the land in dispute is unregistered. This fact has been conceded by the learned counsel for the respondent. The second complaint is equally strong. Before D entering judgment in default, the learned trial magistrate ought to have invited the plaintiff to prove his case ex-parte. And lastly the holding that the appeal to this court is time-barred is contentious. It cannot be dismissed summarily without availing opportunity for submission of the parties. E
In conclusion, I am of the considered view that the three arguments raise contentious issues of law. Hence this is a fit case for further consideration by the Court of Appeal. The application is therefore granted as prayed. F
A