https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12130

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT KISUMU*** ***CIVIL APPEAL NO. E124 OF 2021*** ***COSICAN ENGINEERING WORKS LIMITED…………..…APPELLANT*** ***-VERSUS-*** ***HOUSING FINANCE CO-OPERATION LIMITED.….1ST RESPONDENT*** ***JOSEPH OMONDI AGOKO…………………………….2ND RESPONDENT*** ***(Being an Appeal from the Ruling of Hon. P. Gesora delivered on 29th September, 2021 in Kisumu CMCC NO.366 of 2016)*** ***JUDGMENT*** **Introduction** 1. The present appeal arose from objection proceedings commenced by the Appellant following attachment in execution of the decree issued in ***Kisumu CMCC No. 366 of 2016***. The Appellant had filed a Notice of Objection and two applications dated 30/9/2020 and 31/5/2021, the first challenging the attachment and the second seeking to cite the Respondents and the auctioneer for contempt of court. 2. The trial court determined both applications in a single ruling delivered on 29/9/2021 and found that the objection application lacked merit as the Objector failed to link itself with the attached motor vehicles. 3. The Appellant being dissatisfied with the aforementioned ruling appealed against it on the following grounds: - *“1. The trial magistrate erred in law and fact in dismissing the appellant's objection by determining that the appellant did not prove its ownership interests in the attached Motor Vehicles when there was sufficient evidence on record to adequately demonstrate that the attached Motor Vehicles belonged to the appellant.* *2. The trial magistrate erred in law and fact in failing to consider the weight of the evidence and facts placed before him by way of documents and pleadings filed and submissions and therefore arrived at a decision that was improper and not informed by any facts or law as to occasion a travesty of justice to the appellant.* *3. The trial Magistrate occasioned a travesty of justice by misapprehending the law and facts placed before him and therefore unfairly dismissing the appellant’s objection.”* 1. Based on the foregoing grounds, the Appellant prayed to have the appeal allowed with costs and its objection allowed. The Appellant prayed further to have the Motor Vehicles Registration numbers KCB 808V and KCC 451B restored back to it and/or compensation for the full values of the two motor vehicles by the Respondents. **Appellant’s Submissions** 1. The Appellant filed submissions dated 30/3/2026 in support of the appeal. The Appellant relied on the submissions previously filed before the trial court and urged the appellate court to consider them in its re-evaluation of the matter. 2. It was submitted that the trial magistrate erred in both fact and law by failing to appreciate that the objection proceedings were meritorious and well-founded, and consequently erred in dismissing the objection with costs. The Appellant therefore prayed that, upon a fresh analysis of the evidence, the objection proceedings, the submissions and the applicable legal principles, the court finds the appeal meritorious and allows it with the appropriate orders. **1st Respondent’s Submissions** 1. The 1st Respondent filed submissions dated 28/5/2026 opposing the instant appeal. It identified three issues for determination, namely whether the appeal was competent, whether it had merit, and who should bear the costs. 2. On competence, it was submitted that orders made under Order 22 Rules 51–55 of the Civil Procedure Rules are not appealable as of right under section 75 of the Civil Procedure Act or Order 43 of the Civil Procedure Rules, and that leave to appeal was therefore mandatory. Since the Appellant neither sought nor obtained leave before filing the appeal, it was argued that the appeal was incompetent and that the court lacked jurisdiction to entertain it. 3. Without prejudice to that objection, the 1st Respondent submitted that the appeal lacked merit, maintaining that the trial magistrate correctly applied both the law and the facts in dismissing the objection proceedings. It therefore urged the court to dismiss the appeal with costs, contending that costs should follow the event under section 27 of the Civil Procedure Act. **Analysis and Determination** 1. I have considered the grounds of appeal and the submissions filed by the parties. My duty at this stage is to evaluate the applications afresh as was held by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123***:* when it stated that "… the duty of the first Appellate court is to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’. 2. Having considered the Record of Appeal and the submissions, I will extract the following issues for determination: - 1. *Whether the instant appeal was filed competently* 2. *Whether the trial magistrate erred in law and fact in dismissing the appellant's objection proceedings by failing to properly evaluate the evidence and applicable law on the Appellant's ownership of the attached motor vehicles*. 3. On the first issue, the Respondent submitted that the instant appeal does not lie as of right as leave had to be sought before it was filed. **Section 75** of the **Civil Procedure Act** provides instances where appeals lie as of right, it provides:- “ *(1)* ***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-*** ***(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;*** ***(b) an order on an award stated in the form of a special case;*** ***(c) an order modifying or correcting an award;*** ***(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;*** ***(e) an order filing or refusing to file an award in an arbitration without the intervention of the court;*** ***(f) an order under section 64;*** ***(g) an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;*** ***(h) any order made under rules from which an appeal is expressly allowed by rules.*** ***(2) No appeal shall lie from any order passed*** *in appeal under this section*.” 1. **Order 43, rule 1 of the Civil Procedure Rules** states:- “*1)* ***An appeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act—*** ***(a) Order 1 (parties to suits);*** ***(b)Order 2 (pleadings generally);*** ***(c) Order 3 (frame and institution of suit);*** ***(d) Order 4, rule 9 (return of plaint);*** ***(e) Order 7, rule 12 (exclusion of counterclaim);*** ***(f) Order 8 (amendment of pleadings);*** ***(g) Order 10, rule 11 (setting aside judgment in default of appearance);*** ***(h) Order 12, rule 7 (setting aside judgment or dismissal for non-attendance);*** ***(i) Order 15, rules 10, 12 and 18 (sanctions*** ***against witnesses and parties in certain cases);*** ***(j) Order 19 (affidavits);*** ***(k) Order 22, rules 25, 57, 61(3) and 73 (orders in execution);*** ***(l) Order 23, rule 7 (trial of claim of third person in attachment of debts);*** ***(m) Order 24, rules 5, 6 and 7 (legal representatives);*** ***(n) Order 25, rule 5 (compromise of a suit);*** ***(o) Order 26, rules 1 and 5(2) (security for costs);*** ***(p) Order 27, rules 3 and 10 (payment into court and tender);*** ***(q) Order 28, rule 4 (orders in proceedings against the Government);*** ***(r) Order 34 (interpleader);*** ***(s) Order 36, rules 5, 7 and 10 (summary procedure);*** ***(t) Order 39, rules 2, 4 and 6 (furnishing security);*** ***(u) Order 40, rules 1, 2, 3,7 and 11 (temporary injunctions);*** ***(v) Order 41, rules 1 and 4 (receivers);*** ***(w) Order 42, rules 3, 14, 21, 23 and 35 (appeals);*** ***(x) Order 45, rule 3 (application for review);*** ***(y) Order 50, rule 6 (enlargement of time);*** ***(z) Order 52, rules 4, 5, 6 and 7 (advocates);*** ***(aa) Order 53 (judicial review orders).*** ***(2) An appeal shall lie with the leave of the court*** ***from any other order made under these Rules.*** ***(3) An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.*** ***(4) Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied******for and an order refusing such relief*.”** 1. This is an appeal against a ruling on objection proceedings filed in the lower court. An order emanating from objection proceedings is not listed as one of the orders from which an appeal lies as of right but rather leave would need to be sought beforehand. 2. In **Brandworld Communications Ltd & 2 others v Improtech Kenya Ltd & another [2022] KEHC 9959 (KLR)**, the court stated the following:- “***The appeal herein emanated from objection proceedings taken in the lower court by the Applicants pursuant to Order 22 Rules 51 to 55 of the CPR.*** ***8. Orders made under these provisions are not included in Order 43 Rule 1 of the CPR as among those from which an appeal lies as of right. Moreover, the provisions of Order 43 Rule (1) (k) of the CPR cited in the Applicants’ motion do not relate to appeals from objection proceedings. The rest of Order 43 CPR provides that:*** ***“(2) An appeal shall lie with the leave of the court from any other order made under these Rules.*** ***(3) An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.*** ***(4) Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”*** ***9. It is trite that the question whether an appeal lies as of right or by leave goes to the jurisdiction of the appellate court to entertain an appeal before it. I associate myself with the sentiments of Sewe J, in Edith Wairimu Njoroge v Brooks Holdings Co. Ltd [2018] e KLR that where an appeal does not lie as of right from an order but only with leave, such leave “was a prerequisite to the assumption of jurisdiction by this court on appeal.”*** ***In Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR the Court of Appeal held that the issue relating to the existence of the right of appeal goes to the appellate court’s jurisdiction, is a fundamental matter and that a question regarding the absence of statutory conferment of such right is not a mere technicality.*”** 1. The Appellant did not seek leave to file this appeal from the lower court before filing the instant appeal in violation of section 75 of the Civil Procedure Act and Order 43, Rule 1 of the Civil Procedure Rules. Without such leave being granted, this court is bereft of jurisdiction to consider and determine this appeal. 2. As matters stand therefore, the appeal is invalid, and the court does not have the jurisdiction to consider the second issue for determination stated hereinabove as it goes into the substance of the appeal which I have found to be incompetently, before this court. 3. **Consequently, the Appeal herein fails and is accordingly struck out with costs to the 1st Respondent.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court Assistant Miss Ayumba h/b for Mr. Ouma for the Appellant. Miss Angwenyi h/b for Mr. Ragot for the Respondent.