[2022] KEHC 15614 (KLR)

Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) [2022] KEHC 15614 (KLR) (Civ) (24 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15614 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E345 of 2022

JN Njagi, J

November 24, 2022

Between

Directline Insurance Co. Ltd

Appellant

and

Jacob Ogonda Onyango

Respondent

Ruling

1. The respondent has filed a preliminary objection dated June 8, 2022 in opposition to the appellant/applicant`s notice of motion dated May 24, 2022 on the grounds that the appellant is in this matter appealing against an order of the magistrate`s court where the appeal can only lie with the leave of the court. That no such leave was obtained before the appeal was filed.

2. The applicant did not file a response to the preliminary objection.

3. The background to the preliminary application is that the appellant/applicant filed an application before the magistrate`s court seeking for stay of execution which came up for directions on May 23, 2022 but the trial magistrate declined to grant the orders sought for stay of execution. The applicant was dissatisfied with the ruling of the trial court and filed the instant appeal. They complained that the trial court had denied the applicant the opportunity to be heard.

4. The advocates for the respondent, Nelson Kaburu & Co Advocates, submitted that there is no automatic right of appeal from order 42 rule 6 or from an order declining stay of execution.That neither is there a right of appeal from an order of directions or refusal to grant interim orders or denial of opportunity to be heard generally. That the applicant was obligated to obtain leave of the court to file an appeal but no such leave has been exhibited or alluded to.

5. The respondent relied on order 43 of theCivil Procedure Ruleswhich provides for orders from which an appeal lies as of right and appeals where the leave of court has to be obtained.

6. The respondent further submitted that on the May 24, 2022, Justice Mulwa granted stay of execution on condition that the decretal sum was deposited in court within 10 days from May 26, 2022 which lapsed on June 6, 2022. That the applicant made the deposit on June 7, 2022 by which time Justice Mulwa`s orders had automatically lapsed. That in the premises there is no stay of execution in place and the court has not been asked to issue fresh orders or to extend the time set by Justice Mulwa. The respondent consequently urged the court to dismiss the entire appeal and notice of motion with costs.

7. I have considered the preliminary objection and the grounds adduced in support thereof. The meaning of a preliminary objection was explained by the Court of Appeal in the case of Mukhisa Biscuit Manufacturers Ltd v West End Distributors Ltd [1969] EA 696, where the court stated that:“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

8. The argument by Mr Kaburu in this matter is that the appellant/applicant was obligated to obtain leave of the court before filing the appeal where the court had declined to grant orders for stay of execution. The preliminary objection thus raises a pure point of law on whether the court has jurisdiction to entertain the matter for failure to obtain leave of the court before filing the appeal.

9. Section 75 of the Civil Procedure Act provides for the orders from which an appeal lies as of right. Further orders where an appeal lies as of right are stated under order 43 rule 1 of the Civil Procedure Ruleswhich provides as follows:“(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 ……….

10. Order 43 rules (2) provides as follows:“(2)An appeal shall lie with the leave of the court from any other order made under these rules.

11. It is then clear that under order 43(2) an appeal shall lie with the leave of the court from any other order made under the rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under order 43(1) leave to appeal must be obtained before such an appeal can be preferred. (See Mutungi J in Serephen Nyasani Menge v Rispah Onsase [2018] eKLR).Order 42 rule 6 under which applications for stay of execution fall is not one of the orders mentioned in order 43(1) where the appeal lies as of right. The appellants ought to have sought leave before filing this appeal.

12. In Stephen Omondi Juma v Sprocer Awuor Rabote[2022] eKLR, Aburili J was faced with a similar issue as the issue before me. She cited a Court of Appeal decision and stated that:“As was emphatically stated in Nyutu Agrovet Ltd as Airtel Networks Ltd [2015] eKLR, a right of appeal only lies where the law specifically provides for such right to accrue and where no such right is automatic, then a party seeking to appeal must first obtain leave of court. Further, that the right of appeal is conferred by statute and cannot be inferred. It follows that where a right of appeal does not lie automatically, a party can only invoke the provisions of section 75 of the Civil Procedure Act and order 43 of the Civil Procedure Rules, to seek and obtain leave from the lower court to appeal to this court."Leave to appeal in the instant case did not lie as a matter of right.

13. The applicant seemed to argue that the matter had come up for directions when the court declined to issue stay orders. In my view, directions given by a court are by definition orders of the court. InGrace Wanjiru Kariuki & another v Lydiah Njambi [2018] eKLR, Gitari J considered whether directions given by a court amounted to appealable orders and stated as follows:“The question is whether the directions which were given are an order which is appealable. The appeal was admitted and was coming for directions as provided under order 42 rule II Civil Procedure Rules.An order is defined in wikipendia dictionary:“A court order is an official proclamation by a Judge (or a panel of Judges) that defines the legal relationship between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case.”Black’s law dictionary:“Definition of order in a general sense. A mandate, precept, a command or direction authoritatively given, a rule or regulation.”My view is that the directions given by the trial Magistrate were an order appealable to the High Court with the leave of the court."

14. I am in entire agreement with this holding. The directions given by the trial court amounted to orders of which the respondent ought to have sought leave to appeal.

15. The Court of Appeal in Peter Nyaga Murake v Joseph Mutungi, Nairobi Civil Appeal No 86 of 2015, while dealing with failure to seek leave to appeal from an order stated as follows:“Without leave of the High Court, the applicant was not entitled to give notice of appeal where, as in this case, leave to appeal is necessary by dint of section 75 of the Civil Procedure Act and order 43 of the Civil Procedure Rules, the procurement of leave to appeal is sine qua non to the lodging of the notice of appeal. Without leave, there can be no valid notice of appeal and without a valid notice of appeal, the jurisdiction of this court is not properly invoked. In short, an application for stay in an intended appeal against an order which is appealable only with leave which has not been sought and obtained is dead in the water”.The notice of motion herein is thus incompetent.

16. It is clear from the court record that the applicant deposited the decretal sum in court after the time given by Justice Mulwa to do so had lapse. The orders by Justice Mulwa were categorical that failure to comply with the time granted to deposit the money would render the stay orders to automatically lapse. The stay orders had lapsed when the money was deposited. The applicant did not seek for extension of time before depositing the money. There are thus no orders for stay of execution in force.

17. In view of the foregoing, the preliminary objection is sustained. There having been no leave to appeal obtained, this court lacks jurisdiction to entertain the matter. The notice of motion dated May 24, 2022 is consequently struck out with costs to the respondent.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH NOVEMBER 2022. J. NYAGA NJAGIJUDGEIn the presence of:No appearance for Appellant/ApplicantMr. Kaburu for RespondentCourt Assistant - Ubah30 days R/A