[2024] KECA 537 (KLR)

Maru v Wafula (Civil Appeal (Application) E030 of 2022) [2024] KECA 537 (KLR) (9 April 2024) (Ruling)

Neutral citation: [2024] KECA 537 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Civil Appeal (Application) E030 of 2022

F Sichale, FA Ochieng & WK Korir, JJA

April 9, 2024

Between

Mansukhlal Jesang Maru

Applicant

and

Frank Wafula

Respondent

(Being an application to Strike Out the Notice of Appeal dated 5th December 2022 against the Ruling of the Environment & Land Court at Kitale (Nyagaka J), dated 5th December 2022 in ELC Case No. 103 of 2008 Environment & Land Case 103 of 2008 )

Ruling

1. By the motion on notice dated December 19, 2022, brought pursuant to the provisions of rule 84 of the Court of Appeal Rules 2010, Mansukhlal Jesang Maru (the applicant herein) has sought the following orders;“a.The Notice of Appeal dated December 5, 2022 lodged by the respondent in the Environment and Land Court at Kitale on the December 7, 2022 vide Environment and Land Court Case No. 103 of 2008 be struck out.b.That the respondent be condemned to pay costs.”

2. The motion is supported on the grounds on the face of the motion and an affidavit sworn by the applicant who deposed inter alia that on 14th November 2022, when Kitale ELC Case No. 103 of 2008, came up for further defence hearing, the respondent raised an objection alleging that the trial court had no jurisdiction to hear and determine the said case.

3. That, on December 5, 2022, the trial court delivered its ruling electronically and dismissed the Preliminary Objection raised by the respondent and on December 7, 2022, the respondent lodged a Notice of Appeal dated December 5, 2022, without seeking leave of the court and that as such, the Notice of Appeal dated December 5, 2022, was incompetent and was for striking out having been filed without leave of the court.

4. The motion was opposed vide a replying affidavit and a further affidavit sworn by the respondent on January 7, 2023 and September 29, 2023 respectively, who deposed inter alia that the intended appeal was arguable and striking out the Notice of Appeal will not finally determine the matters in controversy and that the instant application lacked merit having been overtaken by events as Kitale ELC case No. 103 of 2008, was coming up for judgment on October 4, 2023 and that further; the impugned Notice of Appeal was properly on record having matured to a proper Record of Appeal known as Eldoret Civil Appeal No. 006 of 2023.

5. In response to the respondent’s averments, the applicant swore a supplementary affidavit on October 11, 2023, deposing inter alia that the impugned Notice of Appeal was ripe for dismissal as the respondent did not seek leave prior to filing it and the fact that the case was coming up for judgment on October 12, 2023, did not render the motion nugatory unless the respondent was withdrawing his appeal.

6. When the matter came up for plenary hearing on February 5, 2024, Mr. Nyamu learned counsel appeared for the applicant whereas the respondent appeared in person. Both parties relied on their written submissions dated October 11, 2023 and November 27, 2023 respectively.

7. The applicant in his submissions reiterated that the impugned Notice of Appeal had been filed without leave and that in view of the foregoing, the Court’s jurisdiction had not been properly invoked as an appeal arising out of an objection that has been dismissed ought to be filed with leave of the Court and that failure to seek leave denies the Court jurisdiction to entertain such an objection.

8. On the other hand, it was submitted by the respondent that the application lacked merit and ought to be dismissed with costs as the applicant had failed to cite a proper Rule of this Court on an application of this nature and that further the same had been overtaken by events as the respondent had proceeded to file and serve the Record of Appeal being Civil Appeal No. E006 of 2023 on time.

9. We have carefully considered the motion, the grounds thereof, the supporting affidavit, the supplementary affidavit, the replying affidavit and the further affidavit, the rival submissions by the parties, the cited authorities and the law.

10. The applicant is essentially seeking an order to strike out the respondent’s Notice of Appeal dated December 5, 2022, on the grounds that the same was filed without leave of the Court. It is not in dispute that the ruling that the respondent seeks to appeal against was in respect of a Preliminary Objection that he had raised in the trial court contending that the trial court did not have jurisdiction to hear and determine the matter, which Preliminary Objection was dismissed by the court on 5th December 2022.

11. Section 75 of the Civil Procedure Act, cap 21 of the Laws of Kenya provides Orders from which appeals lies as of right or with leave of the Court. The same provides as follows;“75. Orders from which appeal lies 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. 2. No appeal shall lie from any order passed in appeal under this section.”

12. Order 43 of the same Act which is titled “Appeals from Orders”on the other hand provides as follows;“1. 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 debts);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.”

13. It is evident from the provisions of section 75 and order 43 (supra), that an Order from the ruling on a Preliminary Objection does not lie as of right and leave is a perquisite before an appeal from such an order can be filed.

14. In the instant case, it is indeed not in dispute that the respondent did not seek leave before filing the impugned Notice of Appeal dated 5th December 2022.

15. Rule 84 of the Court of Appeal Rules 2010, upon which the applicant’s motion is predicated provides as follows;““84. Application to strike out notice of appeal or appealA person affected by an appeal may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.” (Emphasis supplied)

16. In the instant case and the respondent having failed to take out some essential step, namely obtaining leave before filing the impugned Notice of Appeal dated 5th December 2022, the respondent’s Notice of Appeal is for striking out. Additionally, during the plenary hearing, it transpired that the substantive suit in the trial court had already been heard and determined.

17. The tototality of our findings therefore, is that the applicant’s motion dated December 19, 2022, is merited and we accordingly allow the same and strike out the respondent’s Notice of Appeal dated December 5, 2022, with costs to the applicant.

18. It is so ordered.

DATED AND DELIVERED AT NAKURU THIS 9TH DAY OF APRIL, 2024. F. SICHALE.................................JUDGE OF APPEALF. OCHIENG.................................JUDGE OF APPEALW. KORIR.................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR