https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10185

Development Bank of Kenya Ltd v INC Supplies Ltd (Commercial Case E099 & E252 of 2024 (Consolidated)) [2026] KEHC 10185 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 10185 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E099 & E252 of 2024 (Consolidated) MN Mwangi, J June 19, 2026 Between Development Bank of Kenya Limited Appellant and INC Supplies Limited Respondent Ruling 1.In a Ruling delivered on 24th October 2025, this Court ordered consolidation of these two appeals. Prior to that, Notice of Motion applications dated 26th November 2024 had been filed in the two separate Appeals. The application in HCCOMMA No. E099 OF 2024 was filed under Sections 1A, 1B, 3A and 75 of the Civil Procedure Act and Order 43 Rules 1(i) (sic) & 2 of the Civil Procedure Rules and all enabling provisions of the law. In the said application, the respondent/applicant seeks orders for the striking out and/or dismissal in limine, of the Memorandum of Appeal dated 18th April 2024. In HCCOMMA No. E252 OF 2024, the application was filed under the provisions of Sections 1A, 1B, 3A and 75 of the Civil Procedure Act, Section 27 of the Limitation of Actions Act, Order 43 of the Civil Procedure Rules and all enabling provisions of the law. The applicant prays for orders for the striking out and/or dismissal in limine, of the Memorandum of Appeal dated 3rd September 2024. 2.The applications are premised on the grounds in support thereof, and the affidavits sworn on 26th November 2024 by Mr. Robert Migaode, the applicant’s Director. He averred that HCCOMMA No. E099 OF 2024 was filed following an application dated 11th April 2024, that was filed in the lower Court by the applicant herein, seeking to discharge exparte orders issued on 9th April 2024 and the same were discharged on 12th April 2024 by Hon. C.K. Cheptoo. 3.In the application filed by the applicant herein, in HCCOMMA No. E252 OF 2024, Mr. Robert Migaode averred that pursuant to an application dated 7th June 2024 before the lower Court, the respondent herein sought prayers for stay of execution, extension of time to file a defence, a declaration that the default Judgment was irregular, among other orders. He further averred that Hon, B.M Cheloti, dismissed the said application and held that the correct application that the respondent herein should have made, was purely for extension of time to file a defence out of time and that the correct procedure for challenging the extension of the limitation period is at trial and Not by application. 4.Mr. Robert Migaode contended that the Memoranda of Appeal dated 18th April 2024 and 3rd September 2024, were filed without leave of the Court, making the Appeals herein fatally defective. 5.This Court has gone through the Case Tracking System and finds that the appellant/respondent herein, did Not file a response to the Notice of Motion in HCOMMA No. E099 OF 2024, but in HCOMMA No. 252 of 2024, there is a replying affidavit sworn on 19th November 2025 by Mr. Chris Gachiri, the Legal Manager of the respondent. He confirmed that the two Appeals were consolidated by this Court and averred that they should Not be struck out as they are on the issue of setting aside a default judgment and stay of execution. He stated that enlargement of time to file suits is as a matter of right, which does Not require leave of the Court. He deposed that the consolidated Appeals raise significant issues which ought to be considered on their merits. 6.The instant applications were canvassed by way of written submissions. The applicant filed submissions dated 3rd November 2025 through the law firm of Odera Obar & Co Advocates. The respondent filed submissions dated 19th January 2026 through the law firm of Komm Advocates. 7.Mr. Odera, learned Counsel for the applicant argued that the Appeals were filed without the mandatory leave of the Court, making them incompetent and an abuse of Court process. He argued that the appellant (Now respondent) in HCOMMA No. E099 of 2024 and HCCOMMA No. E252 of 2024, required leave of Court to appeal, as the Appeals herein, do Not constitute matters that can be appealed from as of right, and as such, they are irregularly before this Court. 8.Counsel submitted that the applications herein, are anchored on Section 75 of the Civil Procedure Act and Order 43 Rule 1(1) of the Civil Procedure Rules. He argued that interlocutory orders are Not appealable as of right, but require leave of the Court. He relied on the decisions made in Peter Nyaga Muvake v Joseph Mutunga [2015] KECA 475 (KLR), Mucheri (Civil Appeal 11 of 2018) [2024] KEHC 3222 (KLR) and Ochola v Onyango (Suing as the Legal Representative of the Estates of Vincent AtieNo Onyango-Deceased) & aNother [2024] KEHC 6026 (KLR), to bolster his submissions. 9.Counsel stated that grant of leave touches on the issue of jurisdiction as it gives the Court authority. He cited the cases of the Owners of Motor Vehicle M.V. Lilian S V Caltex Oil (K) Ltd [1989] and Macharia & aNother v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 KLR, on the issue of jurisdiction. He also cited the case of Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR, on the right to appeal. He urged this Court to strike out the Appeals due to failure to obtain leave to appeal. 10.Mr. Oyando, learned Counsel for the respondent submitted that the two Appeals are appealable as a matter of right. He contended that the applications herein, are devoid of merits and ought to be dismissed. He argued that appeals emanating from execution of decrees lie as a matter of right. He cited Order 43 Rule 1(k) and Order 22 Rule 25 of the Civil Procedure Rules. 11.He maintained that the respondent herein, is challenging the execution of the impugned decree and did Not require leave of the Court to file the Appeals. He held the position that the respondent is challenging the exparte discharge of an injunction in the form of stay of execution, which under Order 40 Rule 1(u) does Not require leave of the Court. He submitted that the Appeals are properly before this Court and urged for the same Not to be dismissed. Instead, he prayed for the instant Notice of Motion applications to be dismissed. Analysis And Determination. 12.I have considered the two Notice of Motion applications and their respective supporting affidavits, the response filed by the respondent and the written submissions by Counsel for the parties. The issues for determination are whether the Appeals herein were filed as a matter of right or if the respondent required leave to appeal. 13.The primary law on Appeals that can be filed as a matter of right and the ones that require leave of the Court is as stipulated in Section 75(1) of the Civil Procedure Act, which states as follows-75(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. 14.Order 43 of the Civil Procedure Rules, 2010, sets out the orders which can be appealed as a matter of right. It provides that-“Appeals from Orders [Order 43, rule 1](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 debt);(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.” 15.Based on the history of this matter, it is important to rehash what transpired in the lower Court. A default judgment was entered in the lower Court matter on 18th September 2023 and the respondent herein filed Notice of Motion application dated 21st September 2023, seeking to set aside the said Judgment. A Ruling was delivered on 9th February 2024, allowing the application on condition that the respondent pays thrown away costs of Kshs.20,000/=, files its defence within 21 days. Failure to comply with the said conditions would result in automatic vacation of the orders setting aside the exparte Judgment. 16.Although the respondent herein paid the thrown away costs on 19th February 2024, it defaulted in filing its statement of defence within the 21 days it had been given, and the orders that had been issued earlier were automatically vacated, The said circumstances prompted the respondent herein, to file the Notice of Motion application dated 5th April 2024, seeking extension of time to file its defence. The lower Court on 9th April 2024 granted exparte stay of execution orders. The applicant herein being aggrieved by the said orders, filed a Notice of Motion application dated 11th April 2024, seeking to set aside the exparte orders. The lower Court allowed the said application in a Ruling delivered on 12th April 2024. The respondent herein, being aggrieved by the Rulings rendered by Hon. Cheptoo and Hon. Cheloti, lodged the present Appeals 17.In its Memoranda of Appeal, the respondent herein, raised grounds which are mainly that the Trial Magistrates erred in fact, by discharging the exparte orders that had been granted to it and by granting an exparte order that was never sought by the applicant herein, thereby lifting the stay of execution of the impugned Judgment, among other grounds of Appeal. The question that this Court must determine is whether the Appeals on the discharge of the exparte orders and the lifting of the stay of execution orders, were filed to the High Court as a matter of right or whether the respondent herein required leave of the Court to file them. 18.Under Order 43 Rule 1 of the Civil Procedure Rules, there is No mention of an order for discharge of exparte orders, among the orders which can be appealed from, as a matter of right. 19.The respondent herein has justified its Appeals by stating that they touch on stay of execution of the default Judgment of the lower Court. However, Order 43 Rule 1(k) of the Civil Procedure Rules relates only to specific provisions of Order 22 Rules 25, 57, 61(3) and 73 (orders in execution) and Not all the provisions thereof. Rule 25 relates to stay of execution pending suit between a decree-holder and a judgment-debtor; Rule 57 addresses Notification of sale by public auction, Rule 61(3) states that a decree-holder shall Not bid for or buy property without permission and Rule 73 is on bid of co-sharer to have preference, which in this Court’s view are Not relevant to the issues at hand. 20.The respondent herein equated the discharge of the exparte stay of execution orders to discharge of an injunction, and contended that it is allowed under Order 43 Rule 1(u). The application of the said Order is however limited to Rules 1, 2, 3, 7 and 11 on temporary injunctions. It is trite that stay of execution and temporary injunctions are distinct procedures under the law. It is therefore this Court’s considered view that the Appeals herein should Not have been filed as a matter of right, but required leave of the Court, which was Not sought. 21.See the Court of Appeal decision in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others (supra), where the said Court held as follows-“The question of a right to appeal goes to jurisdiction and is so fundamental we are unprepared to hold that absence of statutory donation or conferment is a mere procedural technicality to be igNored by parties or a court by pitching tent at Article 159 (2) (d) of the Constitution. We do Not consider Article 159 (2) (d) to be a panacea, nay, a general whitewash, that cures and mends all ills, misdeeds and defaults of litigation. ….Having already found that jurisdiction stands on a higher, firmer and more peremptory position than procedural rules, we can only re-iterate that it goes to the very heart of substantive validity of court processes and determinations and certainly does Not run afoul the substance - procedure dichotomy of Article 159 of the Constitution." 22.Ultimately, this Court finds that the two Appeals filed by the respondent herein, are Not properly before the Court because the respondent herein, did Not obtain leave of the Court before filing them. This Court is bound by the decision of the Court of Appeal in Peter Nyaga Muvake v Joseph Mutunga (supra), which stated as follows-“As to whether the appeal is competent, there is No contest that the appeal arises from the decision of Mabeya J made under Order 42 Rule 6 of the Civil Procedure Rules. Section 75 of the Civil Procedure Act, Cap 21, stipulates the thematic orders from which appeals lie as of right. Appeals from other orders lie only with the leave of the Court. An order made under Order 42 Rule 6 is Not exempt from the requirement of leave. It does Not lie as of right. In this case, the applicant did Not seek or obtain leave to appeal against the decision of Mabeya J. As the effect of this is that No appeal lies without such leave, this Court would have No jurisdiction to entertain, hear or determine the applicant’s appeal.” 23.The upshot is that the two Notice of Motion applications dated 26th November 2024, in the consolidated Appeals - HCOMMA No. E099 of 2024 and HCOMMA No. E252 of 2024, are merited. The Memoranda of Appeal filed therein are hereby struck out. The respondent/applicant is hereby awarded costs of the applications and the consolidated Appeals.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 19TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-Ms Muthoni h/b for Mr. Odera for the respondent/applicantMr. Moriasi h/b for Mr. Oyando for the appellant/respondentMs Julia – Court Assistant.NJOKI MWANGI, J.