Lord Morris Investment Ltd & 3 others v Mulwa (Civil Appeal E719 of 2025) [2026] KEHC 11822 (KLR) (Civ) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E719 OF 2025** **LORD MORRIS INVESTMENT LIMITED…….….......1ST APPELLANT** **JANE WAMBUI NGUMI……………………………………2ND APPELLANT** **BENSON MATIBA MORRIS……………………………..3RD APPELLANT** **JOSEPH BAGENI T/A** **INTERCOUNTY AUCTIONEERS……………………..…4TH APPELLANT** **-VERSUS-** **VALENTINE MWENDE MULWA………………............RESPONDENT** (*Being an appeal from the Ruling and Order of Hon. S.K. Onjoro (SPM) delivered on 18th June, 2025 in Milimani CMCC No.E299 of 2025)* **RULING** **Introduction** 1. Before this Court is the Respondent's Notice of Preliminary Objection dated 5th November 2025 challenging the competence of the present appeal. The objection raises a singular but fundamental jurisdictional question, namely, whether an appeal from a subordinate court to the High Court is incompetent for failure by an appellant to file and serve a Notice of Appeal before lodging an Appeal. 2. The objection invites the Court to determine whether the alleged omission goes to the jurisdiction of this Court and whether it renders the appeal fatally defective and liable to be struck out. The objection equally calls upon the Court to examine the proper statutory framework governing appeals from subordinate courts to the High Court under the Civil Procedure Act and the Civil Procedure Rules. 3. Having carefully considered the pleadings on record, the rival submissions by learned counsel, the applicable constitutional and statutory provisions and the relevant jurisprudence, this Court now renders its determination. **Background** 1. The record before the Court shows that the learned trial magistrate, **Hon. S.K. Onjoro(PM),** delivered the ruling on 18th June 2025. 2. Aggrieved by that decision, the Appellants exercised their statutory right of appeal by filing a **Memorandum of Appeal** dated 11th July 2025. Simultaneously, they filed a **Certificate of Urgency** dated 15th July 2025 together with a **Supporting Affidavit** sworn on 14th July 2025 in support of an interlocutory application arising from the appeal. 3. There is no dispute that the **Memorandum of Appeal** was lodged within the thirty-day period prescribed under **Section 79G of the Civil Procedure Act**. Equally undisputed is the fact that the appeal was commenced by way of a Memorandum of Appeal. 4. Subsequently, the Respondent filed a **Notice of Preliminary Objection** dated 5th November, 2025 contending that the appeal was incompetent for want of a Notice of Appeal. According to the Respondent, the filing and service of a Notice of Appeal is a mandatory procedural step whose omission deprives this Court of jurisdiction to entertain the appeal. 5. Directions were thereafter issued that the Preliminary Objection be disposed of by way of written submissions. Both parties duly complied with those directions by filing their submissions. **The Respondent's Case** 1. The Respondent filed written submissions dated 18th November, 2025 urging the Court to uphold the Preliminary Objection and strike out the appeal. 2. Counsel for the Respondent identified two issues for determination, namely; 1. ***Whether the filing and service of a Notice of Appeal is a mandatory legal requirement before instituting an appeal.*** 2. ***Whether the present appeal is properly before the Court in the absence of such Notice of Appeal.*** 3. On the first issue, it was submitted that a Notice of Appeal constitutes the foundational document in every appellate process since it formally communicates an appellant's intention to challenge the impugned decision. It was argued that the Notice of Appeal is not a mere procedural formality but an indispensable jurisdictional document whose absence renders an intended appeal non-existent in law. 4. The Respondent submitted that the requirement to file a Notice of Appeal is mandatory and cannot be waived by the Court. Reliance was placed on ***Bogonko v Ndege, Civil Application No. 2 of 2021 [2024] KECA 351 (KLR)*** wherein the Court is said to have held that, absent a Notice of Appeal properly on record, there exists no valid expression of intention to appeal. 5. Further reliance was placed on ***University of Eldoret & Another v Hosea Sitienei & 3 Others [2020] eKLR***, where the Supreme Court observed that the filing of a Notice of Appeal signifies an appellant's intention to invoke the appellate jurisdiction of a superior court and is not contingent upon the fulfilment of any prior condition. 6. On the second issue, the Respondent submitted that because no Notice of Appeal was filed, this Court lacks jurisdiction to entertain the appeal. It was argued that jurisdiction cannot arise through implication or equitable considerations and that failure to comply with mandatory procedural requirements renders proceedings incurably defective. 7. Counsel therefore urged the Court to find that the omission is fatal, declare the appeal incompetent, strike it out with costs and uphold the Preliminary Objection. **The Appellants' Case** 1. The Appellants opposed the Preliminary Objection through written submissions dated 6th November, 2025. 2. Learned counsel submitted that the objection is founded upon a complete misconception of the statutory procedure governing appeals from subordinate courts to the High Court. It was contended that the Respondent had improperly imported procedural requirements applicable to appeals before the Court of Appeal and the Supreme Court into a statutory appeal governed entirely by the Civil Procedure Act and the Civil Procedure Rules. 3. Counsel framed three issues for determination, namely; 1. ***Whether a Notice of Appeal is a mandatory requirement for appeals from subordinate courts to the High Court.*** 2. ***Whether the Preliminary Objection satisfies the legal threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.*** 3. ***Whether the present appeal is competently before this Court.*** 4. On the first issue, counsel submitted that appeals from subordinate courts are governed principally by **Section 79G of the Civil Procedure Act** together with **Order 42 of the Civil Procedure Rules.** Counsel argued that neither the Act nor the Rules requires the filing of a Notice of Appeal before lodging a Memorandum of Appeal. 5. It was submitted that **Order 42 Rule 1** expressly provides that every appeal to the High Court shall be instituted by way of a Memorandum of Appeal signed in the same manner as pleadings. Counsel argued that the Rule is couched in mandatory terms and leaves no room for the filing of a Notice of Appeal as a jurisdictional prerequisite. 6. Reliance was placed on **Ndamboi Agency Limited & other v Fast Capital Limited [2025] KEHC 12146 (KLR)** where the Court is said to have held that appeals before the High Court are initiated through a Memorandum of Appeal and not a Notice of Appeal. 7. Further reliance was placed on **JWB v RNK [2015] KEHC 7058 (KLR)** where it was observed that the Memorandum of Appeal constitutes the principal pleading in civil appeals before the High Court. 8. Counsel equally cited **Wycliffe Sikuku Walusaka v Philip Kaita Wekesa [2020] KELC 1855 (KLR)** for the proposition that Order 42 Rule 11 presupposes that an appeal has already been instituted through the filing of a Memorandum of Appeal. 9. On whether the Preliminary Objection satisfies the well-known principles in *Mukisa Biscuit*, counsel submitted that the objection is legally misconceived. It was argued that the Respondent's objection proceeds on an erroneous understanding of the applicable procedural law and therefore cannot constitute a pure point of law capable of disposing of the appeal. 10. Counsel relied on **Oraro v Mbaja [2005] eKLR** and **Nitin Properties Ltd v Singh Kalsi & Another [1995–1998] EA 257**, submitting that a preliminary objection cannot be founded upon disputed legal assumptions or an incorrect appreciation of the governing statutory framework. 11. On the final issue, counsel submitted that the appeal was lodged within the statutory thirty-day period prescribed by **Section 79G of the Civil Procedure Act**. The impugned ruling having been delivered on 18th June, 2025 and the Memorandum of Appeal having been filed on 15th July, 2025, it was argued that the appeal was properly instituted within time. 12. Counsel therefore submitted that the appellate jurisdiction of this Court was properly invoked and that there exists no procedural or jurisdictional defect capable of invalidating the appeal. 13. The Appellants consequently urged the Court to dismiss the Preliminary Objection with costs and affirm that the appeal is properly before this Court. **Issues for Determination** 1. Having considered the Preliminary Objection, the rival submissions and the applicable law, it is my respectful view that the following issues arise for determination; 1. ***Whether the Notice of Preliminary Objection dated 5th November, 2025 satisfies the legal threshold of a preliminary objection as enunciated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.*** 2. ***Whether a Notice of Appeal is a mandatory legal requirement for instituting an appeal from a subordinate court to the High Court.*** 3. ***Whether the present appeal was competently instituted before this Court.*** 4. ***What orders should issue as to costs.*** **Analysis and Determination** 1. I have carefully considered the Respondent's Notice of Preliminary Objection, the rival submissions filed by learned counsel, the record before the Court and the applicable law. In my respectful view, the issues identified above are interrelated and shall, where appropriate, be discussed together. **(i) Whether the Notice of Preliminary Objection meets the legal threshold** 1. A preliminary objection is a procedural device intended to summarily dispose of proceedings where the objection is founded on a pure point of law capable of determining the matter without recourse to evidence. It is not intended to provide a forum for determining contested facts or inviting the Court to exercise judicial discretion. 2. The jurisprudential foundation of preliminary objections in Kenya remains the celebrated decision in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696****,* where Law JA stated that a preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary point, may dispose of the suit. 3. The principles in ***Mukisa Biscuit*** have consistently received approval from the superior courts. In **Oraro v Mbaja [2005] eKLR**, the High Court cautioned that a preliminary objection must not be blurred with factual issues liable to be contested through evidence. Equally, in ***Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR***, the Supreme Court reaffirmed that a preliminary objection must be founded on a pure question of law capable of disposing of the matter without engaging in factual inquiry. 4. The Respondent's objection is predicated on the contention that this Court lacks jurisdiction because the Appellants failed to file a Notice of Appeal before instituting the appeal. Jurisdiction is undoubtedly a pure question of law and, where properly raised, may be determined at the earliest opportunity. Indeed, it is settled that jurisdiction is everything and without it a court must down its tools, as was authoritatively stated by the Court of Appeal in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR****.* 5. Consequently, although I do not agree with the substantive merit of the objection, I am satisfied that the objection, as framed, raises a jurisdictional issue founded on a point of law. It therefore satisfies the procedural threshold of a preliminary objection. The real question is whether that point of law is correctly founded upon the applicable statutory framework. **(ii) Whether a Notice of Appeal is a mandatory requirement for an appeal from the subordinate court to the High Court** 1. This issue lies at the heart of the Preliminary Objection. 2. The Respondent's case proceeds on the premise that every civil appeal must invariably be preceded by the filing of a Notice of Appeal and that failure to do so renders the appeal incompetent. 3. Respectfully, that submission overlooks an elementary but fundamental distinction in Kenya's appellate structure. 4. The appellate process in Kenya is governed by different statutory and procedural regimes depending on the court from which the appeal originates and the appellate court to which it is directed. The procedure governing appeals from subordinate courts to the High Court is distinct from that governing appeals to the Court of Appeal and is equally distinct from appeals to the Supreme Court. 5. It is therefore imperative that the applicable statutory framework be identified before importing procedural requirements from one appellate hierarchy into another. 6. The right of appeal from a subordinate court to the High Court is principally governed by **Section 79G of the Civil Procedure Act**, which provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, subject to the Court's discretion to admit an appeal out of time upon sufficient cause being shown. 7. Notably, **Section 79G** does not prescribe the filing of a Notice of Appeal as a condition precedent to the institution of such an appeal. 8. Equally instructive is **Order 42 Rule 1 of the Civil Procedure Rules**, which expressly provides: *"****Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading****."* 1. The language employed by the Rule is deliberate and mandatory. It prescribes both the mode and the form through which appellate jurisdiction of the High Court is invoked. The Rule does not contemplate, require or even make reference to the filing of a Notice of Appeal. 2. The Civil Procedure Rules are comprehensive in prescribing the procedural steps governing appeals from subordinate courts. Had the Rules Committee intended that a Notice of Appeal be filed before lodging a Memorandum of Appeal, nothing would have been easier than expressly providing so. The omission cannot therefore be supplied through judicial interpretation. 3. The Respondent's argument, in effect, asks this Court to read into **Order 42** an additional procedural requirement that the Rules themselves do not contain. Courts, however, interpret statutes and rules as enacted; they do not legislate under the guise of interpretation. 4. This principle was succinctly expressed by the Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR***, where the Court held that a court's jurisdiction flows either from the Constitution or legislation and cannot be expanded through judicial craft or innovation. 5. Equally, where legislation has clearly prescribed the manner in which jurisdiction is invoked, courts are obligated to apply the law as enacted and not to create additional procedural hurdles not contemplated by Parliament or the Rules Committee. 6. The Respondent has heavily relied upon authorities discussing the legal significance of a Notice of Appeal. 7. A careful appreciation of those authorities, however, reveals that they concern appeals intended for the Court of Appeal or proceedings before the Supreme Court. 8. Under the **Court of Appeal Rules**, a Notice of Appeal constitutes the originating document through which an intended appellant signifies an intention to challenge a decision before the Court of Appeal. Likewise, proceedings before the Supreme Court similarly recognize the Notice of Appeal as the instrument through which appellate jurisdiction is triggered under the applicable Rules. 9. Those procedural regimes cannot, with respect, be transplanted wholesale into appeals governed by the **Civil Procedure Act** and **Order 42 of the Civil Procedure Rules**. 10. The Court must remain faithful to the procedural framework specifically enacted for appeals from subordinate courts. 11. The Supreme Court has repeatedly emphasized that every court exercises only such jurisdiction as is conferred upon it by the Constitution or statute. Consequently, procedural requirements applicable before one superior court cannot automatically be imported into proceedings before another court unless the governing legislation expressly provides. 12. It follows that while the authorities cited by the Respondent correctly state the law applicable to appeals before the Court of Appeal and the Supreme Court, they do not govern appeals from subordinate courts to the High Court. 13. The Court therefore finds that the Respondent's reliance upon those authorities is misplaced because they arise from an entirely different appellate regime. 14. On the other hand, the Appellants correctly drew the Court's attention to the provisions of **Section 79G of the Civil Procedure Act** together with **Order 42 Rule 1 of the Civil Procedure Rules.** 15. Those provisions constitute the applicable statutory code governing the institution of civil appeals before this Court. 16. Once a Memorandum of Appeal complying with **Order 42 Rule 1(1)** is filed within the timelines prescribed under **Section 79G**, the appellate jurisdiction of the High Court is properly invoked. 17. No additional statutory requirement exists requiring the filing or service of a Notice of Appeal. 18. To hold otherwise would amount to imposing an obligation unknown to the Civil Procedure Act and the Civil Procedure Rules. 19. **Article 159(2)(d) of the Constitution** commands courts to administer justice without undue regard to procedural technicalities. Although Article 159 does not excuse outright non-compliance with mandatory legal provisions, neither should it be invoked to create procedural obligations where none exist in law. 20. The Court of Appeal in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR*** emphasized that procedural rules are handmaidens of justice. They exist to facilitate, rather than obstruct, the determination of disputes on their merits. Equally, courts must insist upon compliance with mandatory provisions but should refrain from creating procedural barriers beyond those enacted by law. 21. In the present appeal, there exists no statutory provision requiring the filing of a Notice of Appeal. The omission complained of is therefore not an omission known to the governing procedural law. 22. The Court consequently finds that a Notice of Appeal is **not** a mandatory prerequisite for instituting an appeal from a subordinate court to the High Court. **(iii) Whether the present appeal was competently instituted** 1. Having found that a Notice of Appeal is not a statutory requirement, it becomes necessary to determine whether the present appeal otherwise complies with the applicable procedural framework. 2. The chronology is not disputed. The impugned ruling was delivered on 18th June, 2025. 3. The Memorandum of Appeal was dated 11th July, 2025 and filed on 15th July, 2025. 4. The filing was therefore well within the thirty-day period prescribed under **Section 79G of the Civil Procedure Act.** 5. The Memorandum of Appeal forms part of the record before this Court and satisfies the requirements prescribed under **Order 42 Rule 1 of the Civil Procedure Rules**. 6. Consequently, the statutory conditions for invoking this Court's appellate jurisdiction were fully complied with. 7. The Respondent has not identified any defect relating to the filing of the Memorandum of Appeal, the timeliness of the appeal or the jurisdiction donated under **Section 79G.** 8. The sole complaint concerns the absence of a Notice of Appeal. 9. Having found that no such requirement exists under the applicable statutory framework, it necessarily follows that the Preliminary Objection lacks legal foundation. 10. Courts must guard against striking out proceedings on the basis of procedural requirements not sanctioned by law. The right of appeal is a substantive statutory right and should only be defeated where there exists clear legal authority requiring such a result. 11. In the present case, no such authority exists under the Civil Procedure Act or the Civil Procedure Rules. 12. This Court therefore finds that the appeal was properly, lawfully and competently instituted. 13. The Preliminary Objection is accordingly devoid of merit. **Disposition** 1. Having carefully considered the Notice of Preliminary Objection dated 5th November 2025, the rival submissions by counsel, the record of appeal, the applicable statutory provisions and the relevant jurisprudence, I am not persuaded that the objection is merited. 2. The Respondent's objection is founded on the erroneous premise that every appeal to the High Court must be preceded by the filing and service of a Notice of Appeal. That proposition finds no support in the Civil Procedure Act or the Civil Procedure Rules governing appeals from subordinate courts to the High Court. 3. The Respondent has relied on authorities dealing with appeals before the Court of Appeal and the Supreme Court, where the filing of a Notice of Appeal is indeed an indispensable procedural step under the respective appellate rules. Those authorities correctly state the law applicable within those appellate hierarchies. However, they are inapplicable to the present proceedings, which arise from an appeal to the High Court under **Section 79G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules**. 4. The Court reiterates that appellate procedure in Kenya is statute-specific. Each appellate forum is governed by its own constitutional and statutory framework. A procedural requirement applicable before one appellate court cannot, without express legislative authority, be imported into another appellate regime. 5. Consequently, the Respondent's contention that this Court lacks jurisdiction cannot be sustained. Jurisdiction has been properly invoked through the filing of a Memorandum of Appeal in compliance with the governing statutory provisions. 6. It follows that the Notice of Preliminary Objection dated 5th November, 2025 is devoid of legal merit and must fail. **Costs** 1. The general principle governing the award of costs is embodied in **Section 27 of the Civil Procedure Act**, namely that costs follow the event unless the Court, for good reason, orders otherwise. 2. The Respondent has been unsuccessful in the Preliminary Objection. I discern no exceptional circumstances warranting a departure from the general rule. 3. The Appellants shall therefore have the costs of the Preliminary Objection. **Orders** 1. Accordingly, and for the foregoing reasons, the Court makes the following orders; 2. ***The Respondent's Notice of Preliminary Objection dated 5th November, 2025 is hereby dismissed.*** 3. ***It is hereby declared that the Memorandum of Appeal dated 11th July, 2025 and filed on 15th July 2025 was properly and competently filed before this Court.*** 4. ***The appeal shall proceed to hearing and determination on its merits in accordance with the directions of the Court.*** 5. ***The costs of the Preliminary Objection are awarded to the Appellants***. 6. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY 2026.** **L. P. KASSAN** **JUDGE** **In the presence of;** Wamae for Appellant No appearance for Respondent Leonard – Court Assistant