https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12557

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E087 OF 2025*** ***PROGRESSIVE CREDIT LIMITED……………………….….APPELLANT*** ***-VERSUS-*** ***BEATRICE WAMBUI KAMAU…………………………1ST RESPONDENT*** ***ELIZAPHAN GITHINJI KAMAU……………………..2ND RESPONDENT*** ***(****Being an Appeal from the Ruling of Hon. Mukami Wachira delivered on 21st March, 2025 in Ruiru MCCC No. E367 of 2024)* ***IN REPUBLIC OF KENYA*** ***IN THE CHIEF MAGISTRATE COURT AT RUIRU*** ***CIVIL SUIT NO. E367 OF 2024*** ***BEATRICE WAMBUI KAMAU………………………………….…………1ST PLAINTIFF*** ***ELIZAPHAN GITHINJI KAMAU……………………………….……..….2ND PLAINTIFF*** ***-VERSUS-*** ***PROGRESSIVE CREDIT LIMITED…………………………………………DEFENDANT*** ***JUDGMENT*** **Introduction** 1. The Appellant filed a Preliminary Objection dated 21/11/2024 in ***Ruiru MCCC No. E367 of 2024*** seeking to strike out the suit for lack of jurisdiction. 2. Upon considering the Preliminary Objection and the rival submissions filed by the parties, the trial court delivered a ruling dated 21/3/2025 dismissing it and finding that it had the jurisdiction to hear and determine the suit filed before it. 3. The Appellant being dissatisfied with the said ruling appealed against the entire Ruling on the following grounds:- 1. *The Learned Magistrate erred both in law and fact by holding that the Court had jurisdiction to hear and determine the suit notwithstanding the fact that the value of the subject matter of the suit is Kshs.22,000,000/-which is in contravention of Section 7 of the Magistrate's Court Act No.26of 2015.* 2. *The Learned Magistrate erred both in law and fact by holding that the ruling of Hon. Lady Justice Mshila does not affect the matter before Court yet the issue before the Court is whether the Charge to the Appellant over the property known as Title Deed* ***No.Ruiru/Mugutha Block 1/T.1311*** *by the late Alexander Kamu Githinji was proper or not an issue that was conclusively dealt with before the Judge through viva voce evidence in a full hearing and a decision made.* 3. *The Learned Magistrate erred both in law and fact by failing to appreciate the facts of the case and the law applicable and thus arrived at a wrong decision.* 4. *That the Learned trial Magistrate erred both in law and fact by taking into account extraneous matters that were not placed before her and thus arrived at a wrong decision.”* 4. Based on the foregoing grounds, the Appellant prayed to have the appeal allowed and its Preliminary Objection upheld with costs. Alternatively, the Appellant prayed to have the court make its own finding on the appeal. **Appellant’s Submissions** 1. The Appellant filed submissions dated 21/11/2025 in support of the appeal. The Appellant challenged the ruling dismissing its Preliminary Objection on four grounds. First, it argued that the trial court lacked pecuniary jurisdiction under section 7 of the Magistrates' Courts Act because the suit property, ***Ruiru/Mugutha Block 1/T.1311***, was valued at Kshs.22,000,000/=, exceeding the Chief Magistrate's pecuniary limit of Kshs.20,000,000/=. It contended that the subject matter of the suit was the charged land, not merely the charge instrument, and that the uncontroverted valuation report established the court's lack of jurisdiction. 2. The Appellant further maintained that the trial magistrate erred in finding that the issue of value was irrelevant, in holding that the Preliminary Objection did not arise from the pleadings despite jurisdiction having been expressly denied in the defence, and in failing to down her tools once jurisdiction was challenged. 3. The Appellant further submitted that the trial magistrate failed to appreciate that the validity of the charge had already been conclusively determined by the High Court in succession proceedings, where it was held that the suit property was not free property of the estate until the outstanding loan was discharged. It argued that the High Court had specifically addressed the issue of spousal consent after considering viva voce and documentary evidence, and that the Respondents' suit before the magistrate's court amounted to an impermissible attempt to challenge or overturn a binding High Court determination. 4. It was further contended that the trial magistrate failed to properly evaluate the facts and applicable law by disregarding the property's value, overlooking the binding High Court findings on the validity of the charge, and ignoring that the issue of jurisdiction had been pleaded. Additionally, it argued that the magistrate relied on irrelevant considerations, particularly the timing of the filing of the valuation report, instead of addressing the undisputed fact that the property's value exceeded the court's pecuniary jurisdiction. **Respondent’s Submissions** 1. The Respondents filed submissions dated 10/3/2026 in opposition to the appeal. They raised two issues for determination. First, they contended that the appeal was incompetent for having been filed without leave of the court contrary to section 75 of the Civil Procedure Act and Order 43 Rule 1(2) of the Civil Procedure Rules. They submitted that a ruling on a Preliminary Objection is not appealable as of right and, in the absence of leave, the appeal was fatally defective and ought to be struck out with costs. 2. Without prejudice to that objection, the Respondents argued that the appeal lacked merit. They maintained that the subject matter of the suit before the trial court was the validity of a charge securing a loan of Kshs.1,676,973/= and not ownership or the value of the charged land. Consequently, they submitted that the trial court's pecuniary jurisdiction was to be determined by the loan amount rather than the value of the property. They further contended that the Appellant improperly relied on a valuation report to establish jurisdiction, yet the value of the land had neither been pleaded nor admitted and could only be proved through evidence at trial. Accordingly, the issue did not constitute a pure point of law capable of determination by way of a Preliminary Objection under the principles in Mukisa Biscuit. 3. The Respondents also submitted that the valuation report was merely expert opinion requiring formal proof through oral evidence and cross-examination, making it unsuitable as the basis of a Preliminary Objection. They further argued that the High Court's Succession ruling did not determine the ownership or validity of the charge in the manner alleged by the Appellant, and therefore did not bar the Respondents' claim before the trial court. **Analysis and Determination** 1. This being a first appeal, this court is duty bound to delve into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. This was appreciated in ***Abok James Odera t/a A.J. Odera & Associates vs John Patrick Machira******& Co. Advocates [2013] eKLR*** where the duty of a first appellate court was summarized as follows***:- “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. **Further, in *Kenya Ports Authority vs Kuston (Kenya) Limited [2009] 2 EA 212* the Court of Appeal held inter alia that: -** ***“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”*** 1. **I** have considered the Record of Appeal dated 19/6/2025, the grounds of appeal and the rival submissions filed by the parties. The first issue for determination as raised in the Respondents’ submissions is ***whether the appeal herein is legally competent***. 2. I will first tackle this ground, because it goes to the root of the Appeal. In respect of the ground, the Respondents submitted that the appeal is legally incompetent and defective for want of leave to appeal. 3. **Section 75** of the **Civil Procedure Act** provides instances where appeals lie as of right, it 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*.” 1. **Order 43, rule 1 of the Civil Procedure Rules** states:- “*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 application 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*.”** 1. This is an appeal against a ruling which found that a Preliminary Objection lacked merit. Such an order is not listed as one of the orders from which an appeal lies as of right under statutory provisions reproduced above. 2. In ***UAP Insurance Co.Ltd -V- Abeid Ramadhan(2026) eKLR***, the court addressed a similar issue as follows: - “***7. It is clear that an order upholding or overruling a preliminary objection is not among the orders from which an appeal arises as of right. A party aggrieved by such an order is enjoined to seek leave before filing an appeal.*** ***8. Order 43 of the Civil Procedure Rules also prescribes specific rules from which an appeal arises as of right; that is, appeals from orders made under those specific rules of the civil procedure. A preliminary objection does not fall under any of those rules, in which event, under Order 43 rule 1(2), leave of the court is mandatory and ought to be obtained before filing suit.*** ***…*** ***14.In the absence of leave to appeal;………….this appeal is incompetent and fatally defective. It is******hereby struck out with costs to the respondent. It is so ordered***.” 1. Similarly, in ***Kenya Commercial Bank Limited-v-Tony Manaseh Esipeya (1999) eKLR***, the Court of Appeal held as follows:- “***where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails and a suit is permitted to proceed, no preliminary decree arises but only an order; the unsuccessful party has a right******of appeal with leave and accordingly the appeal was incompetent for want of leave*.”** 1. I am persuaded by the reasoning in the former authority and guided by the latter authority. The Appellant instituted the present appeal without first obtaining leave of the lower court as required under section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules. In the absence of such leave, the appeal is incompetent, and this court lacks jurisdiction to entertain or determine it. 2. Obtaining leave was a prerequisite to the assumption of jurisdiction by this court and without it this court has no choice but to down its tools. 3. **In the upshot, I find the appeal as filed to be invalid and that this court lacks the jurisdiction to consider the substance of the appeal. The Appeal is therefore struck out with costs to the Respondents.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leady*s* – Court Assistant Miss onsongo for Ondabu for the Appellant. N/A for the Respondent.