1. The respondent herein raised a preliminary objection dated 8th January, 2025 contending that the appeal herein was filed more than 30 days after the date of the judgment of the lower court contrary to section 79G of the Civil Procedure Act hence the Court lacked the appellate jurisdiction over the matter.
2. In support of the objection, Mr. Odhiambo for the respondent submitted that the appellant did not file a competent appeal having filed the memorandum of appeal one year after the delivery of judgment. According to counsel, the lower court’s judgment was delivered on 15th September, 2023 but according to the CTS both memorandum of appeal and record were filed on 14th October, 2024. The appeal was therefore filed out of time and was therefore not an appeal as of right. Counsel relied on the case of Gregory Kiema Kyuma v. Marietta Syokau Kiema [1988]eKLR.
3. Mr. Odhiambo further submitted that the only permissible way the appeal could be prosecuted was through extension of time which was never granted. According to counsel, compliance with procedural rules as was laid under section 79G of the Civil Procedure was not a mere technicality but fundamental to the administration of justice. It could not be cured by invoking discretion under section 3A and 3B of the Civil Procedure Act. In this respect counsel relied on the case of Nicholas Kiptoo arap Korir Salat v. IEBC & 6 others [2013] eKLR.
4. Mr. Odhiambo further submitted that the appellant filed an application for stay of execution dated 19th October, 2023 wherein the appellant annexed a draft memorandum of appeal dated 13th October, 2023 which notably had not been filed in court.
5. According to Counsel, an application for stay of execution was distinct from an appeal and did in itself constitute the initiation of an appeal process. Counsel drew the Court’s attention to the provisions of Order 42 Rule 6(1) of Civil Procedure Rules. According to Counsel therefore, annexing an unfiled memorandum of appeal to an application for stay did not amount to formal filing of an appeal.
6. Mr. Gaita for the appellant on the other hand submitted that the preliminary objection failed to meet the legal threshold set by Sir Charles Newbold P in the case of Mukhisa Biscuit Manufacturing Company v. Westend Distributors Ltd (1969) EA 696.
7. According to counsel, the issue of whether the appeal was time barred could not be determined purely as a matter of law. The facts surrounding the filing of the appeal including the date of the memorandum of appeal, its initial filing in a different division and subsequent transfer had to be examined. Counsel submitted that this matter was originally filed in the High Court and allocated case number HCCA E1078 of 2023 and was later transferred to this Court and allocated case number ELRCA 215 of 2023. The memorandum of appeal is dated 13th October, 2023 and filed on 16th October, 2023 in the original file.
8. Mr. Gaita therefore submitted that the issue of whether the appeal was filed out of time or not are contested factual issues which removes the matter from the purview of preliminary objection. The issues raised can only be determined after adducing evidence.
DETERMINATION
9. A preliminary objection as was rightly stated in the Mukhisa Biscuit Company’s case, ought to raise a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.
10. The issue of whether or not an appeal has been filed within the prescribed time is a matter that would require inquiry into the date when the judgment appealed from was delivered, the time allowed to file an appeal by the rules and when the appeal was actually filed. Counsel for the appellant has alleged that the appeal herein was initially filed in the High Court and later transferred to this Court. From the record, the Court confirms so. It would therefore require to interrogate the record in order to determine if indeed the appeal was filed out of time as contended by the respondent. These are matters that fall outside the ambit of preliminary objection. The Court therefore finds the objection misplaced. The available option in such circumstances would be to file an application to strike out the appeal and adduce evidence by way of affidavit to demonstrate the appeal was filed out of time.
11. However in the interest of justice and not to waste the Court’s time, it would be useful to delve into the issue when the appeal was filed and if it was done within the stipulated time. The Court would not have jurisdiction if the appeal is found to have been filed out of time without leave.
12. From the record, it is shown that a memorandum of appeal dated 13th October, 2023 was filed in High Court on 16th October, 2023. The matter was placed before Lady Justice Meoli on 18th October, 2023 who ordered the same transferred to ELRC as it was a dispute falling within its mandate. It is noteworthy that the matter was allocated an appeal number and placed before Lady Justice Meoli. This could not have happened if the appeal was not properly filed.
13. On the issue of time lapse between the judgment of the trial court and the filing of the appeal, the judgment of Honourable Rawlings Liluma was delivered on 15th September, 2023 and the initial appeal filed on 16th October, 2023. Under section 79G of the Civil Procedure Act, an appeal from the subordinate Court to the High Court shall be filed within 30 days of the delivery of the judgment appealed from. The appeal herein was therefore filed within time and the issue of being filed out of time without leave, does not arise.
14. In conclusion the preliminary objection is hereby dismissed and costs shall abide the outcome of the appeal.
15. The Court has noted that the Record of Appeal has been prepared and filed by the appellant. The matter is therefore scheduled for mention on 7th July, 2025 for purposes of directions on the hearing and disposal of the appeal.
16. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
2. In support of the objection, Mr. Odhiambo for the respondent submitted that the appellant did not file a competent appeal having filed the memorandum of appeal one year after the delivery of judgment. According to counsel, the lower court’s judgment was delivered on 15th September, 2023 but according to the CTS both memorandum of appeal and record were filed on 14th October, 2024. The appeal was therefore filed out of time and was therefore not an appeal as of right. Counsel relied on the case of Gregory Kiema Kyuma v. Marietta Syokau Kiema [1988]eKLR.
3. Mr. Odhiambo further submitted that the only permissible way the appeal could be prosecuted was through extension of time which was never granted. According to counsel, compliance with procedural rules as was laid under section 79G of the Civil Procedure was not a mere technicality but fundamental to the administration of justice. It could not be cured by invoking discretion under section 3A and 3B of the Civil Procedure Act. In this respect counsel relied on the case of Nicholas Kiptoo arap Korir Salat v. IEBC & 6 others [2013] eKLR.
4. Mr. Odhiambo further submitted that the appellant filed an application for stay of execution dated 19th October, 2023 wherein the appellant annexed a draft memorandum of appeal dated 13th October, 2023 which notably had not been filed in court.
5. According to Counsel, an application for stay of execution was distinct from an appeal and did in itself constitute the initiation of an appeal process. Counsel drew the Court’s attention to the provisions of Order 42 Rule 6(1) of Civil Procedure Rules. According to Counsel therefore, annexing an unfiled memorandum of appeal to an application for stay did not amount to formal filing of an appeal.
6. Mr. Gaita for the appellant on the other hand submitted that the preliminary objection failed to meet the legal threshold set by Sir Charles Newbold P in the case of Mukhisa Biscuit Manufacturing Company v. Westend Distributors Ltd (1969) EA 696.
7. According to counsel, the issue of whether the appeal was time barred could not be determined purely as a matter of law. The facts surrounding the filing of the appeal including the date of the memorandum of appeal, its initial filing in a different division and subsequent transfer had to be examined. Counsel submitted that this matter was originally filed in the High Court and allocated case number HCCA E1078 of 2023 and was later transferred to this Court and allocated case number ELRCA 215 of 2023. The memorandum of appeal is dated 13th October, 2023 and filed on 16th October, 2023 in the original file.
8. Mr. Gaita therefore submitted that the issue of whether the appeal was filed out of time or not are contested factual issues which removes the matter from the purview of preliminary objection. The issues raised can only be determined after adducing evidence.
DETERMINATION
9. A preliminary objection as was rightly stated in the Mukhisa Biscuit Company’s case, ought to raise a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.
10. The issue of whether or not an appeal has been filed within the prescribed time is a matter that would require inquiry into the date when the judgment appealed from was delivered, the time allowed to file an appeal by the rules and when the appeal was actually filed. Counsel for the appellant has alleged that the appeal herein was initially filed in the High Court and later transferred to this Court. From the record, the Court confirms so. It would therefore require to interrogate the record in order to determine if indeed the appeal was filed out of time as contended by the respondent. These are matters that fall outside the ambit of preliminary objection. The Court therefore finds the objection misplaced. The available option in such circumstances would be to file an application to strike out the appeal and adduce evidence by way of affidavit to demonstrate the appeal was filed out of time.
11. However in the interest of justice and not to waste the Court’s time, it would be useful to delve into the issue when the appeal was filed and if it was done within the stipulated time. The Court would not have jurisdiction if the appeal is found to have been filed out of time without leave.
12. From the record, it is shown that a memorandum of appeal dated 13th October, 2023 was filed in High Court on 16th October, 2023. The matter was placed before Lady Justice Meoli on 18th October, 2023 who ordered the same transferred to ELRC as it was a dispute falling within its mandate. It is noteworthy that the matter was allocated an appeal number and placed before Lady Justice Meoli. This could not have happened if the appeal was not properly filed.
13. On the issue of time lapse between the judgment of the trial court and the filing of the appeal, the judgment of Honourable Rawlings Liluma was delivered on 15th September, 2023 and the initial appeal filed on 16th October, 2023. Under section 79G of the Civil Procedure Act, an appeal from the subordinate Court to the High Court shall be filed within 30 days of the delivery of the judgment appealed from. The appeal herein was therefore filed within time and the issue of being filed out of time without leave, does not arise.
14. In conclusion the preliminary objection is hereby dismissed and costs shall abide the outcome of the appeal.
15. The Court has noted that the Record of Appeal has been prepared and filed by the appellant. The matter is therefore scheduled for mention on 7th July, 2025 for purposes of directions on the hearing and disposal of the appeal.
16. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division