[2023] KEHC 24287 (KLR)

Ong’ere v Onyancha & another (Civil Appeal E118 of 2021) [2023] KEHC 24287 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24287 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E118 of 2021

KW Kiarie, J

October 24, 2023

Between

Grace Kemuma Ong’Ere

Appellant

and

Lazarus Martin Onyancha

1st Respondent

Equity Bank Limited

2nd Respondent

(Being an Appeal from the ruling and order in Oyugis Senior Principal Magistrate’s SPMCC No.167 of 2019 by Hon. B.O Omwansa–Senior Principal Magistrate)

Judgment

1. On October 18, 2021, the appellant orally requested to add previously unfiled documents. The application was challenged because the appellant did not present the necessary documents during the pretrial and it was perceived as an attempt to cover up flaws in her case. The learned magistrate postponed the ruling, which was ultimately announced on the 17th day of November 2021, and the objection was upheld.

2. The appellant was aggrieved by the ruling and filed this appeal through the firm of Bosire Gichana & Company Advocates. The following grounds of appeal were raised:a.The learned trial magistrate erred in law and in fact in dismissing the appellant’s application seeking leave to file a list of witnesses and documents.b.The learned trial magistrate erred in law and in fact in misapplying the provisions of Order 3A of the Civil Procedure Act.c.The learned trial magistrate erred in law and in fact by making a finding that the application was not merited.d.The learned trial magistrate erred in law and in fact in decision albeit, a discretionary one was plainly wrong.

3. The appeal was opposed by the respondents through the firm of O.M. Otieno & Company Advocates, on the following grounds:a.That the appellant did not seek the leave of the trial court to appeal.b.That this court lacks jurisdiction to hear and determine the appeal.

4. As the first appellate court, I understand that it is my responsibility to thoroughly review all evidence presented on record. It is important to note that I did not have the opportunity to witness any witness testimonies or observe their behavior. My decision-making process will be influenced by the ruling in the Selle v Associated Motor Boat Co. Ltd. [1965] EA 123 case, which dictates that the first appellate court must re-examine and assess all evidence presented in the initial trial, ultimately forming our own conclusions about the matter at hand.

5. Section 75 of the Civil Procedure Code provides:(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.Whereas order 43 rules 2 and 3 provides as follows:(2)The rules of Order 42 shall apply, so far as may be, to appeals from orders.(3)Nothing in this Order shall apply to any adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

6. In the case of Isaac Mbugua Ngirachu v. Stephen Gichobi Kaara [2021] eKLR it was stated:18. From the reading of the provisions of the above Order 43(1) it is clear that it sets out the orders from which appeals would lie as a matter of right; and at Order 43(2) which is couched in mandatory terms and provides that any appeal from orders not listed in Order 43(1)(1) ‘shall’ only lie with the leave of the court (emphasis mine); Section 75 of the Act then states that such leave to appeal shall be made to the court of first instance and can be made orally at the time the order is made or within fourteen days from the date of such order; and Order 43(4) expounds on the order which includes an order granting the relief applied for or an order refusing such relief;19. It is not in dispute that the genesis of the appeal emanates from the appellant’s failure to comply with Order 51 Rule 14 of the Civil Procedure Code which clearly lies outside the ambit of the orders set out in Order 43 Rule 1(1); and upon perusal of the court record it does not reflect any leave to appeal being sought or obtained by the appellant before he filed the instant appeal;20. The consequence of failure to seek leave of the court to file an appeal is explained in the Court of Appeal decision of Nyutu Agrovet v Airtel Networks Ltd [2015] eKLR; wherein a five (5) judge bench held that where there was no automatic right to appeal as stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules then the appellate court had no jurisdiction to hear or determine an appeal unless such leave was first sought and obtained;21. From the above decision the omission in this instance touches on jurisdiction of the court; and this court is guided by the aforesaid decision which also held that“...... the right to appeal is conferred by statute and cannot be inferred.”

7. After reviewing the trial court's record, it is clear that the appellant did not follow the required procedure of seeking leave of the court to appeal. As a result, this court lacks jurisdiction to hear or decide on this appeal.

8. Having determined that this court lacks jurisdiction over the appeal, I will not consider its merits. The appeal is dismissed with costs to the respondent.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE