https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12097

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **HCCSCA NO. E 075 OF 2025** **RUTH SUDOI MAKALLAH…………………………….1ST APPELLANT** **GAKUO JOTHAM LAWRENCE...........................2NDAPPELLANT** **VERSUS** **LOIUSE AKINYI OTIENO……..............................RESPONDENT** **RULING** **A. Introduction** 1. Before this Court for determination is the Respondent's Preliminary Objection challenging both the competency of the appeal and the Notice of Motion dated 18th June 2025 through which the Appellants seek an order for stay of execution pending the hearing and determination of the appeal. 2. The objection is founded on the contention that the appeal and the application for stay were instituted out of time and without leave of the Court and are therefore incompetent and liable to be struck out in limine. 3. The objection raises an important procedural question regarding the timeliness of appeals from decisions of the Small Claims Court and the circumstances under which an appeal may be said to be incompetent for having been lodged outside the statutory period prescribed by law. Equally, the Court is invited to determine whether the complaint that the application for stay seeks relief against a judgment that has not itself been appealed from constitutes a proper preliminary objection in law. **B. Background** 1. The material facts giving rise to the present objection are largely uncontested. 2. The Respondent instituted proceedings before the Small Claims Court in **SCC COMM. E6688 of 2023** against the Appellants seeking relief arising from a commercial dispute. 3. Upon being served with a statement of claim, the Appellants failed to enter appearance or file a response within the prescribed period. 4. Consequently, upon the Respondent's request, the Small Claims Court entered judgment in default of appearance on **18th October 2023**. 5. Following the entry of the default judgment, the Appellants moved the Small Claims Court seeking, inter alia, orders setting aside the judgment and granting them leave to defend the claim. 6. The parties canvassed the application through oral submissions. 7. In a ruling delivered on **11th June 2025**, the learned Adjudicator dismissed the application and upheld the default judgment entered on 18th October 2023. 8. Being dissatisfied with that ruling, the Appellants lodged a Memorandum of Appeal dated **16th June 2025**, challenging the refusal by the Small Claims Court to set aside the default judgment. 9. Thereafter, on **18th June 2025**, the Appellants filed a Notice of Motion seeking, among other reliefs, an order staying execution of the judgment delivered on **18th October 2023** pending the hearing and determination of the appeal. 10. Upon being served, the Respondent raised the present Preliminary Objection challenging both the appeal and the application for stay. **C. The Preliminary Objection** 1. The Respondent's Preliminary Objection may be summarised as follows— 1. ***that the appeal was filed outside the period prescribed by law;*** 2. ***that no leave was obtained before lodging the appeal;*** 3. ***that both the appeal and the application for stay are therefore incompetent;*** 4. ***that the proceedings before this Court constitute an abuse of the court process and ought to be struck out with costs.*** 2. Although couched as a preliminary objection, the Court is required to examine whether each of the grounds raised satisfies the legal threshold of a preliminary objection as established by judicial precedent. **D. Parties' Respective Positions** **The Respondent's Position** 1. Learned counsel for the Respondent submitted that the appeal is incurably defective because it was instituted outside the statutory period prescribed for appeals arising from the Small Claims Court. 2. Counsel further argued that no leave to appeal out of time was sought or obtained before filing the Memorandum of Appeal. 3. Counsel relied on the case of ***Sunstone Building Material co.Ltd v Odungo & Anor (civil Appeal E153 OF 2023) KEHC 22469 (KLR)*** 4. The Respondent therefore urged the Court to strike out both the appeal and the application with costs for being incompetent and fatally defective and allow the preliminary objection with costs. **The Appellants' Position** 1. The Appellants opposed the Preliminary Objection. 2. They submitted that the Memorandum of Appeal expressly challenges the ruling delivered on **11th June 2025** and was lodged only a few days after that decision. 3. It was argued that the appeal was therefore filed within the statutory time prescribed by law and that no leave was required. 4. On the complaint directed at the application for stay, counsel submitted that the objection invites the Court to determine substantive questions concerning the scope of the appeal and the appropriateness of the relief sought. 5. According to the Appellants, such questions call for an examination of the pleadings, the impugned ruling, the default judgment and the prayers sought in the application. 6. The Appellants consequently urged the Court to dismiss the Preliminary Objection and order stay pending the hearing and determination of the appeal as it forms the substratum of the matter before the honourable court. **E. Issues for Determination** 1. Having considered the pleadings and rival submissions, the Court is of the respectful view that the following issues arise for determination— 1. ***Whether the Preliminary Objection raises pure points of law capable of determination in limine.*** 2. ***Whether the Memorandum of Appeal dated 16th June 2025 was filed outside the time prescribed by law.*** 3. ***Whether leave of the Court was necessary before filing the appeal.*** 4. ***What orders should issue as to costs.*** 2. Before considering the merits of the objection, it is necessary to restate the well-settled principles governing preliminary objections in Kenyan law, for they provide the framework within which the present objection must be examined. **F. Analysis** **(i) Whether the Preliminary Objection Raises Pure Points of Law** 1. The starting point is to determine whether the objection before the Court satisfies the legal threshold of a preliminary objection. 2. The law on preliminary objections is now well settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* (1969) EA 696,** the former Court of Appeal for East Africa held that a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. Sir Charles Newbold, P. further observed that a preliminary objection cannot be raised where any fact requires to be ascertained or where the Court is called upon to exercise judicial discretion. 3. The Court of Appeal has consistently reaffirmed those principles. In ***Oraro v Mbaja* [2005] 1 KLR 141**, the Court emphasized that a preliminary objection cannot be founded on disputed facts or on factual matters requiring evidentiary interrogation. Where the Court must investigate facts before reaching a conclusion, the matter ceases to be a proper preliminary objection. 4. Likewise, in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd* [1989] KLR 1**, the Court of Appeal underscored that jurisdictional objections founded upon clear points of law should be determined at the earliest opportunity because jurisdiction is everything. Where, however, the objection requires factual inquiry beyond the pleadings, it falls outside the province of a true preliminary objection. 5. Guided by those authorities, the Court is satisfied that the objection alleging that the appeal was filed outside the prescribed statutory period raises a pure point of law capable of determination without receiving evidence. Whether an appeal has been filed within time can ordinarily be ascertained from the dates appearing on the impugned decision, the Memorandum of Appeal and the applicable statutory provisions. 6. On the other hand, the complaint that the application for stay seeks relief in respect of the judgment dated 18th October 2023, whereas the appeal challenges the ruling delivered on 11th June 2025, is not as straightforward. Resolution of that issue requires the Court to examine the impugned ruling, the default judgment, the Memorandum of Appeal and the prayers sought in the Notice of Motion in order to determine the relationship between them. Whether such relief is legally sustainable is a matter that goes to the merits and competence of the stay application itself. 7. Consequently, while the Court accepts that the first limb of the objection properly raises a point of law, it is less persuaded that the second limb is one capable of determination in limine without considering the substance of the application pending before the Court. **(ii) Whether the Appeal Was Filed Out of Time** 1. The Respondent's principal contention is that the appeal is incompetent because it was lodged outside the period prescribed by law and without leave of the Court. 2. The resolution of that contention depends upon identifying the decision from which the appeal has been preferred. 3. The record placed before the Court demonstrates that the Small Claims Court entered judgment in default of appearance on 18th October 2023. 4. Subsequently, the Appellants applied to set aside the default judgment. Upon hearing the parties, the learned Adjudicator rendered a ruling on 11th June 2025 dismissing that application and declining to interfere with the judgment entered in default. 5. The Memorandum of Appeal dated 16th June 2025 expressly impugns the ruling delivered on 11th June 2025. It does not purport to appeal directly against the default judgment entered on 18th October 2023. 6. In determining whether the appeal is time-barred, the Court must therefore reckon time from the date of the ruling actually appealed against and not from the date of the original judgment. 7. The chronology is not disputed. The ruling sought to be challenged was delivered on 11th June 2025, while the Memorandum of Appeal was filed on 16th June 2025, barely five days later. 8. On any computation of time, an appeal lodged within five days of the impugned ruling cannot be said to have been filed out of time. 9. The Court of Appeal has repeatedly held that where an appellate court is invited to determine whether an appeal is competent, the Court must identify the decision appealed from before considering whether the statutory timeline has been complied with. Time runs from the decision challenged by the appeal and not from an earlier decision which is not the subject of the Memorandum of Appeal. 10. The Respondent's argument appears to conflate the default judgment of 18th October 2023 with the subsequent ruling refusing to set it aside. Although the latter left the former intact, they remain distinct judicial determinations giving rise to different rights of appeal. 11. A party dissatisfied with the refusal to set aside a default judgment is entitled to appeal against that refusal. Such an appeal is not rendered out of time merely because the default judgment itself had been entered much earlier. 12. The decision in ***Patel v E.A. Cargo Handling Services Ltd* [1974] EA 7**5 is instructive. Although the case principally concerned the principles governing the setting aside of ex parte judgments, the predecessor of the Court of Appeal recognised that a decision refusing to set aside such a judgment constitutes a separate judicial determination capable of appellate scrutiny. 13. It follows that the Respondent's contention that the appeal ought to have been filed within the statutory period reckoned from 18th October 2023 cannot be sustained because that is not the decision challenged in the present appeal. 14. The Court therefore finds that the Memorandum of Appeal dated 16th June 2025 was filed within the time prescribed for appealing against the ruling delivered on 11th June 2025. **(iii) Whether Leave Was Required** 1. Having found that the appeal was instituted within time, the issue of leave is readily disposed of. 2. Leave to appeal out of time becomes necessary only where the statutory period for lodging an appeal has expired. Where an appeal is lodged within the period prescribed by law, no leave is required unless expressly mandated by statute. 3. Since the Court has already found that the appeal challenging the ruling of 11th June 2025 was filed within the applicable period, the argument that the Appellants ought first to have sought leave is without legal foundation. 4. Accordingly, the first and second limbs of the Preliminary Objection fail. **The Nature of an Appeal Against a Refusal to Set Aside** 1. It is not in dispute that the Memorandum of Appeal challenges the ruling delivered on 11th June 2025 refusing to set aside the default judgment entered on 18th October 2023. 2. It is equally not in dispute that the Appellants seek, pending that appeal, an order staying execution of the default judgment. 3. The issue therefore is not whether there is a distinction between the judgment and the subsequent ruling. Plainly, there is. Rather, the issue is whether the existence of that distinction renders the application for stay so fundamentally incompetent that it may be struck out at the threshold without hearing the parties on its merits. 4. In the Court's view, the answer must be in the negative. 5. An appeal against a refusal to set aside an ex parte or default judgment is, by its very nature, an appeal intended to challenge the continued existence and enforceability of that judgment. The refusal to set aside leaves the judgment intact and capable of execution. Consequently, an appellant who challenges such refusal may legitimately seek interim protection against execution pending the determination of the appeal. 6. Whether such protection should ultimately be granted depends upon the applicable legal principles governing stay pending appeal, including whether the Court is satisfied that the statutory conditions have been met. Those are matters that fall for determination upon the substantive hearing of the application. 7. The Court of Appeal in *Patel v E.A. Cargo Handling Services Ltd* [1974] EA 75 recognized that an application to set aside a default judgment invokes the discretionary jurisdiction of the Court and that an appellate court may examine whether that discretion was exercised judiciously. It follows that an appeal against the refusal to set aside is not divorced from the underlying judgment whose enforcement is sought to be suspended pending appeal. 8. The Court therefore does not accept the proposition that the mere fact that the application seeks to stay execution of the judgment automatically renders it incompetent. **Whether the Issue is Amenable to Determination by Preliminary Objection** 1. More fundamentally, the Court must determine whether the objection raised is one that properly falls within the confines of a preliminary objection. 2. As already observed, ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* (1969) EA 696** establishes that a preliminary objection must be founded upon a pure point of law and must not require the Court to investigate facts, interpret pleadings in detail or exercise judicial discretion. 3. In determining whether the present application is incompetent, the Court would necessarily be required to examine: * 1. ***The memorandum of appeal;*** 2. ***The ruling delivered on 11th June 2025;*** 3. ***The judgment entered on 18th October 2023;*** 4. ***The prayers contained in the notice of motion dated 18th June 2025; and*** 5. ***The legal effect of those pleadings and orders***. 4. The Court would further be required to determine whether the stay sought is ancillary to the appeal, whether the prayers are capable of amendment, whether the Court has jurisdiction to grant the relief sought, and whether the Appellants have satisfied the legal requirements for the grant of stay pending appeal. 5. Those questions are not abstract questions of law. They call for judicial evaluation of the pleadings, the procedural history of the matter and the nature of the relief sought. They are issues that properly belong to the substantive hearing of the application for stay. 6. The Court of Appeal has consistently cautioned against expanding the scope of preliminary objections beyond their intended purpose. In ***Oraro v Mbaja* [2005] 1 KLR 141**, the Court held that a matter requiring factual investigation or judicial evaluation cannot properly be disposed of by way of a preliminary objection. 7. Equally, in ***Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others* [2015] eKLR**, the Court of Appeal reaffirmed that a preliminary objection should not be converted into a forum for determining contested legal and factual questions that properly belong to the substantive hearing of an application or suit. 8. Applying those principles, this Court is persuaded that the Respondent's objection, in so far as it challenges the competence of the application for stay, extends beyond a pure point of law. The objection invites the Court to determine substantive questions that are inextricably intertwined with the merits of the Notice of Motion. 9. It would be contrary to the principles governing preliminary objections for the Court to conclusively determine those questions without affording the parties a full hearing on the application itself. **Effect of the Court's Finding** 1. The Court is not, by this finding, determining that the application for stay is meritorious or that the orders sought are legally available. 2. Equally, the Court is not foreclosing the Respondent from advancing, during the hearing of the Notice of Motion, the argument that the relief sought is legally untenable because the appeal challenges only the ruling refusing to set aside the default judgment. 3. The Court merely holds that the determination of that argument requires consideration of the pleadings, the applicable statutory framework and the principles governing stay pending appeal. It is therefore unsuitable for determination as a preliminary objection. 4. Accordingly, the third limb of the Preliminary Objection is likewise without merit and cannot succeed at this preliminary stage. **H. Disposition** 1. Having carefully considered the Preliminary Objection, the pleadings on record, the rival submissions of counsel and the applicable law, the Court is now in a position to determine whether the objection is merited. 2. The first ground of the Preliminary Objection was that the appeal was filed out of time and without leave of the Court. 3. As already found, the Memorandum of Appeal challenges the ruling of the Small Claims Court delivered on **11th June 2025** dismissing the Appellants' application to set aside the default judgment entered on **18th October 2023**. 4. The Memorandum of Appeal was lodged on **16th June 2025**, five days after the impugned ruling. The appeal was therefore filed within the statutory period prescribed for lodging an appeal against that ruling. It follows that no leave of the Court was required before the appeal was filed. 5. The Court consequently finds that the first and second limbs of the Preliminary Objection are devoid of merit. 6. The Respondent further contended that the Notice of Motion dated **18th June 2025** is incompetent because it seeks an order staying execution of the judgment delivered on **18th October 2023**, whereas the appeal challenges only the ruling delivered on **11th June 2025**. 7. There is no doubt that the issue raised is an important one. It concerns the relationship between the order appealed against and the interim relief sought pending the determination of the appeal. 8. Nevertheless, as this Court has already observed, the determination of that question is not possible without considering the Memorandum of Appeal, the impugned ruling, the default judgment, the prayers contained in the Notice of Motion and the legal principles governing the grant of stay pending appeal. Such an inquiry necessarily calls for judicial evaluation of the pleadings and the exercise of judicial discretion. 9. The law is settled that a preliminary objection must be founded upon a pure point of law capable of disposing of the matter without recourse to contested facts, evidentiary inquiry or the exercise of discretion. The principles enunciated in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* (1969) EA 696 remain the governing authority and have consistently been applied by the superior courts in Kenya. 10. The Court is therefore not persuaded that the Respondent's challenge to the competency of the Notice of Motion is one that properly falls for determination by way of a preliminary objection. The Respondent shall be at liberty to canvass those arguments during the hearing of the application for stay pending appeal, where the Court will have the benefit of full submissions on the legal effect of the relief sought. 11. In reaching this conclusion, the Court is also guided by the constitutional obligation imposed upon courts by Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. That constitutional command, however, does not dispense with compliance with mandatory procedural requirements; rather, it requires courts to distinguish between defects that go to jurisdiction or competence and those issues that are more appropriately determined upon a substantive hearing. 12. The Court is equally mindful that the overriding objective of civil litigation is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. That objective would not be served by striking out an appeal that was filed within the prescribed time merely because a contested question has arisen regarding the scope of the interim relief sought. Such a course would elevate procedural form over substantive justice and deny the parties an opportunity to have the real issues in controversy determined on their merits. 13. Ultimately, the Respondent has not demonstrated that the appeal is incompetent for having been filed outside the statutory period or without leave of the Court. Likewise, the challenge directed at the Notice of Motion raises matters that are more appropriately determined during the substantive hearing of that application. 14. The Court therefore finds that the Preliminary Objection is without merit. **I. Orders** 1. Accordingly, the Court makes the following orders: 1. ***The Preliminary Objection challenging the competency of the appeal dated 16th June 2025 and the Notice of Motion dated 18th June 2025 is hereby dismissed.*** 2. ***The Notice of Motion dated 18th June 2025 shall proceed to hearing and determination on its merits.*** 3. ***The costs of the Preliminary Objection shall abide the outcome of the Notice of Motion dated 18th June 2025***. 2. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY 2026.** **HON. L. P. KASSAN** **JUDGE** **In the presence of:** Mosinya for Applicant No appearance for Respondent Leonard – Court Assistant