https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12744

Nyali Latenight Chemist & Medical Services Company Limited v ABSA Bank Kenya Plc (Commercial Appeal E005 of 1000) [2026] KEHC 12744 (KLR) (7 August 2026) (Judgment) Neutral citation: [2026] KEHC 12744 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Appeal E005 of 1000 J Ngaah, J August 7, 2026 Between Nyali Latenight Chemist & Medical Services Company Limited Appellant and ABSA Bank Kenya Plc Respondent Judgment Introduction 1.This is an appeal against the ruling of Hon. Lucy Khahendi Sindani, Principal Magistrate, delivered on 6th June 2024 in Mombasa CMCC No. E903 of 2023. By that ruling the learned magistrate dismissed the appellant’s application dated 3rd August 2023, by which the appellant sought a temporary injunction to restrain the respondent from repossessing motor vehicle registration number KDJ 692U (a Mercedes Benz) pending the hearing and determination of the suit. 2.The appellant was aggrieved by that decision and preferred this appeal by a memorandum of appeal dated 7th June 2024 and filed on 13th June 2024, within the time allowed. The memorandum raises six grounds. In substance, the appellant complains that the learned magistrate erred in dismissing its application; in finding it to be in default when, it says, it was within the payment schedule of the asset finance facility; in holding that clause 17.1 of the letter of offer entitled the respondent to combine and consolidate the accounts and to set off; in her interpretation of that clause, the appellant contending that the two facilities were separate contracts incapable of being merged without, in effect, rewriting them; in declining to distinguish the merging of contracts from the consolidation of accounts; and in the manner in which she analysed the evidence and the applicable law. The prayer is that the appeal be allowed, the ruling set aside, and the costs of the appeal and of the court below awarded to the appellant. 3.Before turning to the rival contentions, there is a threshold matter arising from the record itself which I must address, for it goes to the competence of the appeal and hence to the jurisdiction of this court to entertain it. Background 4.The background, so far as it can be gathered from the parties’ submissions, is briefly as follows. The respondent, a licensed commercial bank, financed the appellant’s acquisition of the motor vehicle on the terms of a letter of offer dated 28th July 2022, as varied on 12th September 2022 (“the asset finance”). Separately, the respondent advanced to the appellant a term loan of Kshs. 4,500,000/= on the terms of a letter of offer dated 6th September 2022 (“the term loan”). 5.The appellant’s case, as I understand it, is that by a letter dated 27th February 2023 it sought a restructuring of both facilities; that the respondent neither accepted nor rejected that request; and that, assuming its proposal to have been accepted, the appellant proceeded to make payments in accordance with the terms it had itself proposed. The respondent denied that the facilities were ever restructured, maintained that the appellant remained in default even upon its own proposed terms, and contended that, the appellant being in default, it was entitled under the contract to consolidate and combine the appellant’s accounts and to recall both facilities. 6.Apprehending the repossession of the financed vehicle, the appellant instituted the suit and took out the application dated 3rd August 2023 for a temporary injunction. The learned magistrate found that the appellant was in default even upon the restructured terms it alleged; held that the respondent’s right to consolidate and combine accounts was grounded in both contract and law; concluded that the appellant had accordingly not established a prima facie case; and dismissed the application with costs. It is that dismissal which is the subject of this appeal. The state of the record 7.An appeal of this nature is an invitation to this court, sitting as a first appellate court, to interfere with the order of the court below by confirming, varying or setting it aside. It is elementary that, before the court can do any of those things, the order in question must be before it. Yet a perusal of the record discloses that the order appealed from has not been extracted and does not form part of it. 8.The appeal was, as I have noted, duly instituted by the memorandum of appeal, and the record is in other respects complete: the ruling of 6th June 2024 and the record of the proceedings in the court below are both before me. There is, however, one omission, and it is a fundamental one. The order appealed from has never been extracted, and it does not form part of the record. The appellant asks this court to set aside an order that has not been drawn up. 9.The competence of an appeal, like the jurisdiction of the court, is not a matter of form or of the parties’ indulgence. It may be raised by any party at any stage, and it may, indeed must, be raised by the court on its own motion, for a court cannot assume a jurisdiction it does not possess merely because no objection has been taken to its exercise. The requirement to extract the order appealed from 10.Section 2 of the Civil Procedure Act draws the familiar distinction between a decree, which is the formal expression of an adjudication conclusively determining the rights of the parties in a suit, and an order, which is the formal expression of any decision of a civil court that is not a decree. The refusal of a temporary injunction is not a decree; it is an appealable order, from which an appeal lies as of right. But whether the challenge is to a decree or to an order, the governing principle is the same: the formal instrument embodying the decision must be extracted and placed on the record, because it is that instrument, and not the reasons that precede it, from which the appeal is brought. 11.The requirement is not an empty formality. The power of this court on a first appeal is to confirm, reverse or vary the order of the court below; and that power presupposes the existence of an extracted order capable of being confirmed, reversed or varied. A ruling and the order that issues from it are not one and the same: the ruling contains the court’s reasons and the decision it pronounces, whereas the order is the formal instrument that gives that decision effect, and it is from the order, and not from the reasons, that an appeal lies. That the ruling is on the record does not therefore meet the difficulty; for so long as no order has been extracted, there is, strictly, no order before the court capable of being set aside, and the appeal wants the very instrument upon which it must rest. 12.The duty of compiling and placing before the court a proper record, one that contains, at the very least, the order appealed from, lies upon the appellant, as the party invoking the appellate jurisdiction of the court. The filing of the memorandum of appeal institutes the appeal; it does not dispense with the separate and equally essential requirement that the order appealed from be extracted and placed on the record before the court that is to hear it. That obligation is reflected in the provisions of sections 2, 65(1)(b) and 79G of the Civil Procedure Act and in Order 42 of the Civil Procedure Rules, in particular rules 2 and 13(4), the effect of which is that the record must contain the documents relevant to the determination of the appeal, foremost among which is the very decision appealed against. An appeal must, in short, not only be instituted but be properly constituted before it can be determined. 13.This court has, in a consistent line of decisions, held that an appeal unsupported by the extracted decree or order is incompetent and liable to be struck out. I need refer only to Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo [2016] eKLR, and to this court’s own earlier decisions to the same effect in Paul Kurenyi Leshuel and Rapid Kate Services Limited [2026] KEHC 10714(KLR). The reasoning in each is the same: the decree or order is the foundation upon which an appeal is built, and an appeal that lacks its foundation cannot stand. Whether the defect is curable 14.I am conscious of a contrary line of authority which treats the omission to extract a decree or order as a curable irregularity, to be excused under Article 159(2)(d) of the Constitution and the overriding objective. With respect, that line does not assist the appellant. Article 159 was never intended to be a refuge for every procedural default; the Supreme Court has cautioned, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others[2014] KESC 12 (KLR), that it is not a panacea for curing fundamental defects that go to the root of a matter. The absence of the very order appealed from is not a slip of form; it is a defect of substance that deprives the appeal of its foundation. There is a difference between a record that is merely imperfect and a record that lacks the one document without which there is no appeal at all; this is the latter. 15.Once it is found that an appeal is not properly constituted, the court cannot proceed to determine it on its merits, for the jurisdiction to hear and determine an appeal presupposes a competent appeal to be heard and determined. As Nyarangi JA put it in The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1:Jurisdiction is everything. Without it, a court has no power to make one more step … a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 16.So it is here. An incompetent appeal is not properly before the court, and there is nothing upon which the court may pronounce. Disposition 17.I would add, lest it be thought that this conclusion works an injustice, that it does not shut the appellant out. The appeal has been instituted and the record is, but for the one document, complete; what the appellant did not do was to take the essential further step of extracting the order appealed from and placing it on the record. That step may yet be taken, and to the extent that any question of time arises, it remains open to the appellant to seek such relief as the circumstances may warrant under section 79G of the Civil Procedure Act. The striking out of the appeal in its present state is not a determination on its merits and leaves the appellant free to constitute it properly, should it be so advised. 18.In the result, and for the reasons I have given, I find that the appeal, as presently constituted, is incompetent. The following orders commend themselves to me:(a)The appeal is struck out.(b)For the avoidance of doubt, the court expresses no opinion on the merits of the appeal, which must await a properly constituted record.(c)The costs of the appeal shall be borne by the appellant. DATED, SIGNED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE