[2023] KEHC 24945 (KLR)

Mbaya v Kamau & another (Civil Appeal E012 of 2023) [2023] KEHC 24945 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24945 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Civil Appeal E012 of 2023

AK Ndung'u, J

November 7, 2023

Between

Boniface Mutuma Mbaya

Applicant

and

Justus Njachi Kamau

1st Respondent

James Mwangi Kibanya

2nd Respondent

Ruling

1. This ruling resolves the notice of motion dated 25/07/2023 brought under Article 48, 50 and 159(2) of the Constitution, section1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The application seeks the following orders;i.Spentii.Spentiii.That execution of decree, notice to show cause dated 11/01/2022 and all other proceedings in Nanyuki CMCC No. 19 of 2006 be stayed pending the hearing and determination of this suit.iv.Costs of the application be in the cause.

2. The application is based on the grounds on the face thereof and a supporting affidavit by the Applicant. It is the applicant’s case that the decree in Nanyuki CMCC No. 19 of 2006 arose from a road accident and at the time the Applicant was duly insured by Blue Shield Insurance Company Limited against claims by third parties and therefore, the insurer was legally bound to settle any decree arising from the insurance policy. That the insurer was however placed under statutory management and a moratorium was issued that stayed all the matters against the insurer.

3. It is averred that the 1st Respondent took out a notice to show cause why the Applicant should not be committed to civil jail for failing to settle the decree. Thereafter, the Applicant filed an application seeking stay of execution in lieu of the moratorium which application was dismissed by the trial court on 12/07/2023. The Applicant is therefore in imminent danger of being committed to civil jail for failure to satisfy the decree contrary to the said insurance policy and it is in the interest of justice that the notice to show cause and the proceedings in Nanyuki CMCC No. 19 of 2006 be stayed pending the prosecution of the appeal.

4. The 1st Respondent filed a replying affidavit dated 19/08/2023 and raised a preliminary objection. He averred that he will be greatly prejudiced if the application is allowed since it will delay execution and will amount to exposing him to liquidity issues of an insurance company with which he had no contractual engagement. That the Applicant has been delaying the execution process by filing several applications since the judgment was issued on 13/02/2020. That Nanyuki CMCC 19 of 2006 was against a tortfeasor so he had no connection to the insurance as a policy holder or a creditor to the insurance and he was not privy to the contract for the moratorium to extend to a third party.

5. In the Preliminary objection, the 1st Respondent averred that the court has no jurisdiction to entertain the appeal as the Applicant failed to seek leave of this court in line with Order 43 of the Civil Procedure Rules.

6. In response to the preliminary objection, the Applicant filed a replying affidavit dated 14/09/2023 explaining why the appeal was filed out of time without responding to the flaunting of Order 43 of the Civil Procedure Rules. The Applicant further filed an application dated 13/09/2023 seeking leave to appeal against the ruling dated 12/07/2023 and leave to appeal out of time. No directions were issued by this court in respect to the application dated 13/09/2023.

7. The application is not opposed by the 2nd Respondent and this was confirmed in court by the 2nd Respondent’s Counsel on the 9th September 2023.

8. The application was canvassed by way of written submissions. In the Applicant’s submissions dated 28/09/2023, he addresses the issues raised in his application dated 25/07/2023, the preliminary objection dated 19/08/2023 and on his application dated 13/09/2023. On the application at hand, the Applicant’s counsel submitted that Order 42 Rule 6 of the Civil Procedure Rules grants this court power to issue order for stay of execution if three conditions are met which are risk of substantial loss to the Applicant, the application being made without unreasonable delay, and payment of security for costs.

9. As to the third condition, the Applicant submitted that the order sought to be stayed was a negative award and therefore has no quantifiable value. On the application being filed without unreasonable delay, the Applicant alluded to the averments in his replying affidavit dated 26/09/2023 replying to the preliminary objection. On substantial loss, the Applicant submitted that he risked being committed to civil jail which will render the appeal nugatory.

10. In response to the preliminary objection, the Applicant conceded that indeed the intended appeal does not lie as matter of right and the Applicant was supposed to seek leave before appealing which he failed to do. The Applicant’s counsel averred that Order 43 of Civil procedure Rules is a procedural rule whose strict application would oust the Applicant from the seat of justice. That the Applicant rectified the default by filing the application dated 13/09/2023 seeking to regularize his appeal. It is urged that Article 159, Article 48 of the Constitution and section 1A and 1B of the Civil Procedure Act binds the court to administer justice to all parties without undue regard to procedural technicalities. He urged the court to dismiss the preliminary objection.

11. The 1st Respondent filed submissions dated 05/09/2023. Counsel submitted that the order sought to be appealed is not appealable as a matter of right and that an aggrieved party ought to obtain leave from the court before filing the appeal and in the instant application, no leave was obtained thereby rendering the application dated 25/07/2023 impotent and deprives this court of jurisdiction to hear the appeal. The order sought to be appealed from is not among the orders listed in section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules.

12. As to whether the Applicant’s application is merited, the Respondent did not address the issue of stay of execution but instead delved into the issue of moratorium. It is submitted at length on the relationship of an Insurer and an Insured, and more specifically, their obligations under a contract of insurance. It is submitted that a third party is not privy to the contractual obligations between the insurer and the insured. That even if the insurer is under moratorium, nothing bars a third party to execute a decree against a tortfeasor which is the case herein.

13. I have considered the application, the response by the 1st Respondent including the preliminary objection and the rival submissions by the parties herein.

14. As per demands of the law, the preliminary objection, if it musters the legal threshold, ought to be considered first before addressing the application since a proper preliminary objection is one that has the potential to dispose of the application or suit as the case may be.

15. The legal threshold for a preliminary objection to lie is well settled. Gikonyo J in Catherine Kawira v Muriungi Kirigia [2016] eKLR put it succinctly thus;“(5)I do not want to reinvent the wheel on the legal threshold for Preliminary Objection. It is now well-settled principle that a preliminary objection should be a point of law that is straight-forward and not obscured in factual details for it to be proved. Again, it must be potent enough to decimate the entire suit or application. On this I am content to cite the case of Mukisa Biscuit Manufacturing Company Limited V West End Distributors Limited (1969) EA 696 where it was stated as follows:“So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point 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.”I will not forget the admonitions by Sir Charles P Newbold (as he then was) when he stated in the same case that:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”Ultimately, I wish to associate myself with an apt statement on preliminary objection which was expressed in sheer simplicity in the case of ORARO vs. MBAJA [2005] 1 KLR 141 by Ojwang, J (as he then was) that:“…The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence’’.

16. In our instant suit, the Applicant has invoked Order 42 rule 6(2) of the Civil procedure Rules seeking to appeal the subordinate court’s ruling dated 12/07/2023 dismissing the Applicant’s application for stay and declining to grant the Applicant stay of execution of the decree in Nanyuki CMCC No. 19 of 2006. The application before this court seeks stay of execution pending appeal against the ruling of the subordinate court. The application elicited a preliminary objection on ground that the court has no jurisdiction to entertain the appeal as the Applicant failed to seek leave of this court in line with Order 43 of the Civil Procedure Rules.

17. Going by the law as settled above and on the material before court, the preliminary objection raised herein is on the face of it a pure point of the law capable of finally disposing the application before the court.

18. It is urged that the intended Appeal is not one that lies as a matter of right but one that requires leave of court to be sought and granted.

19. Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules set out decrees/orders that are appealable as a matter of right. Under Section 75 of the Civil Procedure Act, an appeal shall lie as of right from the following orders: -“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—(1)(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.”

20. On the other hand, Order 43 of the Civil Procedure Rules lists those orders from which appeals would lie as a matter of right. The Order provides:“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.(3)An applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.(4)Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”

21. The court in Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) [2022] while faced with a similar application as the instant application had this to say;“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. 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 vs 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.”

22. I have noted and considered the Applicant’s reliance on Article 159, Article 48 of the Constitution and section 1A and 1B of the Civil Procedure Act to explain the legal infraction. This has been a popular route by many a party who fall foul of the law. The application of these legal provisions has been a subject of attention by our courts and the law is settled on the matter. In Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & another [2015] eKLR, the Court of Appeal had this to say of the matter: -“It has often times been stated that rules of procedure are handmaidens of justice; where there is a clear procedure for redress of any grievance prescribed by an Act of Parliament, that procedure should strictly be followed. In the instant case, the Elections Act stipulates that the procedure to challenge membership to the County Assembly is by way of Petition. The appellant having chosen the wrong procedure cannot turn around and rely on Article 159 of the Constitution. Article 159 was neither aimed at conferring jurisdiction where none exists nor intended to derogate from express statutory procedures for initiating a cause of action before courts. The statutory procedure stipulated for determining the question of membership to the County Assembly is by way of petition.’’

23. There is no automatic right of appeal of the order sought to be appealed from by the Applicant in the instant matter. There can therefore be no competent Appeal that would clothe this court with jurisdiction to entertain an application for stay of execution or for stay of proceedings pending Appeal. In essence, this court has no jurisdiction to hear the intended appeal unless leave of the court from which the order was made is sought and obtained. The belated filing of the application dated 13/09/2023 cannot regularize the anomaly.

24. From the foregoing, the preliminary objection herein was well taken and succeeds. With the result that the application dated 25/07/2023 is dismissed with costs to the 1st Respondent.

DATED SIGNED AND DELIVERED AT NANYUKI THIS 7THDAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE