[2022] KEHC 10337 (KLR)

Gitau v Kamau (Civil Appeal E067 of 2021) [2022] KEHC 10337 (KLR) (14 March 2022) (Ruling)

Neutral citation: [2022] KEHC 10337 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E067 of 2021

SN Mutuku, J

March 14, 2022

Between

Christopher Mbui Gitau

Appellant

and

Wambui Kamau

Respondent

(Being an appeal from the Ruling of the Honorable Chief Magistrate Hon. Shitubi in Kajiado CMCC No. 63 of 2020 delivered on 30th September, 2021)

Ruling

1. This Ruling relates to the Application by the respondent dated November 12, 2021 brought by way of a Notice of Motion Application under Order 43 and Order 51 Rule 1 of the Civil Procedure Rules, section 1A,1B, 3A and 75 of the Civil procedure Act seeking to strike out, with costs, the appellant’s Appeal. There is in the court file a Memorandum of Appeal dated October 25, 2021 and filed on November 2, 2021 listing for (4) grounds of appeal. The Record of Appeal is yet to be filed and there is pending a Notice of Motion Application by the appellant dated October 25, 2021 seeking stay of execution of the decree dated July 14, 2021 pending the determination of the application and the intended appeal.

2. The application is supported by an affidavit sworn by Frankline Bett dated November 12, 2021. It is his deposition that there is no valid appeal on record and that the appeal within which the instant application is filed is incompetent for want of leave of court to appeal; that the Application pursuant to which the learned magistrate dismissed the orders sought and which the appellant seeks to appeal against does not fall under any of the Orders set out under Order 43 Rule (1) I respect of which an appeal lies as of right.

3. He deposed that this court’s jurisdiction is not properly invoked because leave to appeal ought to have been sought either at the time the order was made by way of oral application or within 14 days from the date the order was made and that the requirement for leave where right of appeal does not lie as of right is couched in mandatory terms and failure, as in the case of the instant appeal, to seek and obtain leave is fatal and consequently no competent appeal can be lodged against such an order.

4. There is no replyingaffidavit on record by the appellant but counsel for theappellant made oral submissions when this matter was canvassed on November 24, 2021.

5. Mr. Bett for the respondent referred this court to digest filed in this matter but there is no such digest in the court file. Counsel however cited Peter Nyaga Muvake v Joseph Mutunga[2015] eKLR and Serephen Nyasani Menge v Rispah Onsase [2018] eKLR to support the case that an appeal in this case does not lie as of right and therefore leave ought to have been sought.

6. This matter was canvassed on November 24, 2021when Mr. Bett for the Applicant and Mr. Gitari for the Respondent made oral submissions through virtual session. Mr. Bett reiterated the grounds contained in the supporting affidavit sworn on November 12, 2021.

7. Mr. Gitari for the respondent relied on sections 75 and 95 of the Civil Procedure Act and article 159(2) of the Constitution. He admitted that leave was not sought in the trial court but can be sought in the court appeal in. He argued that the question of leave is a matter of procedure and not substance and cited article 159(2) of the Constitution and argued that the appellant can still move this court and regularize the anomaly.

8. He stated that by the time the lower court made its decision, they did not have instructions to appeal and as a result, time ran out as they were seeking instruction leaving them with this court as the only option to seek leave from.

9. Mr. Gitari urged this court to grant theappellant latitude to file application to seek leave from this court arguing that there will be no prejudice suffered by the Respondent.

10. In his rejoinder, Mr. Bett argued that the omission to seek leave in this case touches on the jurisdiction of the court and that this is not a procedural issue curable under article 159 (2) (d) of the Constitution.

11. In analyzing this matter, I have consideredsection 75 of the Civil Procedure Act. It provides categories where an appeal lies as of right. The application whose ruling has aggrieved the respondent was made under Order 21 Rule 8 (2), (3), (4), (5), Order 9, 9A, 9B, 9C, 9D of the Civil Procedure Rules and section 3A of the Civil Procedure Act. It clear to me that an application brought under these provisions does not fall under the categories specified in section 75 of the Civil Procedure Act and Order 43 Rule 1of Civil Procedure Rules. It is without a doubt, and counsel for the appellant has admitted as much, that the provisions of the law under which the Application dated August 18, 2021 whose ruling is sought to be appealed against is not one of the Orders falling under the categories where leave arises as of right. Leave to appeal must therefore be sought before the appellant can file the appeal.

12. I have read the authority cited by the respondent: Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR. The Court of Appeal had the following to say on the issue at hand:“20. 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.21. 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. Without leave of the High Court, the applicant was not entitled to give notice of appeal.”

13. In the above cited authority, the Court of Appeal dismissed the application for reasons that it did not have jurisdiction to entertain it.

14. In Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2others[2013] eKLR, the Court of Appeal observed:“The right of appeal goes to jurisdiction and is so fundamental that 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) of the Constitution to be a panacea, nay, a general white wash, that cures and mends all ills, misdeeds and defaults of litigation.”

15. Again, in Nyutu Agrovet Ltd v Airtel Networks Ltd[2015] eKLR, the Court of Appeal held that where there was no automatic right of Appeal stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, then the Appellate Court has no jurisdiction to hear and determine an Appeal unless leave of the court from which the order was made is sought and obtained.

16. It was conceded that leave to appeal is a requirement of the law and that the Appellant has failed to seek leave to appeal against the impugned ruling. Mr. Gitari purported urge the court to allow the Appellant to file an application for leave to appeal. This comes late in the day. They did not make that move when they had the chance. It only came out in response to the Application by the Respondent which they did not even respond to by filing a Replying Affidavit.

17. From the above cited authorities and the applicable provisions of the law, I am persuaded that this application is merited and that the appeal is rendered incompetent by failure to seek leave to appeal. I agree with the Respondent in her application dated November 12, 2021.

18. Consequently, I hereby grant the Notice of Motion dated November 12, 2021and strike out, with costs, the appellant’s Appeal in this instant case.

19. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF MARCH 2022. S. N. MUTUKUJUDGE