[2023] KEHC 24595 (KLR)

Awimbo v Muiruri (Commercial Appeal E032 of 2022) [2023] KEHC 24595 (KLR) (Commercial and Tax) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24595 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Appeal E032 of 2022

FG Mugambi, J

November 3, 2023

Between

Suji Walter Awimbo

Appellant

and

Irene Wanjiru Muiruri

Respondent

Ruling

1. The respondent filed suit against the appellant in the Chief Magistrate’s Court, being Nairobi MCCOMM No. E1008 of 2021 vide a plaint dated 21st July 2021. On even date she also filed an application seeking amongst others, judgment on the admitted sum of Kshs. 7,959,885/= and GBP 6,141 together with costs and interest.

2. The application was brought under the provisions of Order 13 rule 2 of the Civil Procedure Rules 2010. It was premised on the fact that the appellant had unequivocally admitted the debt by entering into a payment plan dated 21st September 2021.

3. The Learned Magistrate, (Hon. H.M Nyamberi) delivered a ruling on 17th February 2022 allowing judgment on admission in the sum of Kshs. 7,959,885/= and GBP 6,141 together with costs and interest at court rates from the date of filing suit until payment in full.

4. Dissatisfied with the said ruling, the appellant preferred the present appeal vide a Memorandum of Appeal dated 17th March 2022. It is this appeal that gives rise to the preliminary objection dated 30th November 2022 filed by the respondent. The objection was premised on the grounds that the court lacked jurisdiction to hear and determine the appeal since no leave had been obtained from the court that made the order being appealed from in line with Order 43 rule 2 of the Civil Procedure Rules.

5. The appellant does not deny that leave was not sought but observes that no leave was required and that the appeal was filed as a matter of right. This is because the decision rendered by the subordinate court was a final decision which had the effect of determining the rights of the parties with regard to the controversy and which did not require leave.

6. The parties canvassed the preliminary objection by way of written submissions. The appellant filed written submissions dated 25th November 2022, supplementary submissions dated 17th January 2023 and further supplementary submissions dated 16th March 2023. The respondent filed written submissions dated 30th November 2022 and further submissions dated 24th January 2023.

Analysis 7. I have considered the pleadings and the rival submissions as well as the authorities cited by counsel in support of their depositions.

8. Section 75(1) of the Civil Procedure Act provides for the orders against which an appeal would lie as of right and/or with the leave of the Court. It provides inter alia that:“An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted.”

9. Order 43 rule 1 of the Civil Procedure Rules in turn enumerates specific Orders and rules under which an appeal lies as a matter of right. Up to this point, it is not disputed that Order 12 rule 6 under which the application for judgment on admission was made, is not amongst the provisions where an appeal can be filed as of right. The question then would be, should the appellant have sought leave to file an appeal against the decision?

10. Of particular interest is the provision in Order 43 rule 3 which reads as follows:“Nothing in this Order shall apply to any adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.” (emphasis mine).

11. Indeed, I must agree with the appellant and the decisions presented before the court in support of the fact that the application dated 21st July 2021 prayed for, and the ruling of the Learned Magistrate passed judgment and decree in favour of the respondent. That is the essence of an application under Order 12 rule 6. It is as was held in Agricultural Finance Corporation v Kenya National Assurance Company Ltd, (in Receivership) [1997] eKLR to expedite and bring to finality proceedings where admissions are clear and unambiguous, without waiting for completion of the trial. The ruling of the Learned Magistrate therefore determined with finality the dispute between the parties.

12. This Court is bound by the decision of the Court of Appeal in the case of Roy Shipping SA and all other persons interested in the Ship ‘Mama Otan’ V Dodoma Fishing Company Ltd, [1997] eKLR where the Court affirmed the position that as a general rule, orders which conclusively determine the rights of the parties on all or any of the matters in controversy in a suit or matter are appealable as of right.

13. Additionally, I do concur with the observation Hardev Kalsi Singh v Ilam Din S/O Umar Din & 4 Others, [2019] eKLR that:“Order 43 of the Civil Procedure Rules applies to appeals from orders. As I have mentioned, the applicant’s appeal is not against an order but a decree of the court that conclusively determined the rights of the parties herein. Order 43 Rule 3 expressly excludes from the purview of the Order adjudications that conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit. Even if it was to be argued for argument’s sake that the judgment of this court made on 23rd July, 2015 gave rise to an order and not to a decree which is not the case, it would still be excluded from the provisions of Order 43 of the Civil Procedure Rules by Order 43 Rules 3 of the Civil Procedure Rules aforesaid.”

14. For the avoidance of doubt, the effect of this is that the present appeal lies to this Court as of right under section 65(1)(b) of the Civil Procedure Act.

Determination 15. The upshot of the foregoing is that the preliminary objection dated 30th November 2022 is devoid of merit. It is dismissed with costs to the respondent. Parties shall proceed to take directions on the expeditious disposal of the appeal.

DATED, SIGNED AND DELIVERED IN NAIROBITHIS 3RD DAY OF NOVEMBER 2023. F. MUGAMBIJUDGE