'1. The Court below, in orders issued by the Hon R. Ombata on 7th March 2025 in Mombasa MCCC Misc. No E271 of 2023, inter alia, issued a Notice to show cause why the directors of the Appellant should not show because they should not be held in contempt of Court orders issued on 11th September 2024 and orders given on 10th December 2024. Being aggrieved by the said decision the Appellant filed an appeal vide which they sought among other things that the appeal be allowed with costs to the Appellant, the orders of 7th March 2025 be set aside, the applications dated 3rd October 2024 and 26th November 2024 be heard and determined on priority basis and that the matter in the Court below be handled by a different judicial officer other than the Hon Lucy Khaendi Sindani.
2. The Appellant filed, concomitantly with the appeal, an application for a stay of execution of the orders issued on 7th March 2025 and also for a stay of further proceedings in the Court below pending the hearing interpartes of the said application and also the hearing and determination of the appeal. The application is dated 20th March 2025.
3. This Court, upon considering the application exparte, granted prayers 2 and 3 of the said Motion and directed that the same be served for hearing interpartes on 7th April 2025.
4. Upon being served, the 1st Respondent entered an appearance through the firm of Messrs. Bwari Abiero & Associates Advocates and filed a Notice of Preliminary Objection dated 3rd April 2025 vide which they objected to the application on 5 grounds, to wit, that:-
1. The entire application and appeal, aforesaid, is invalid, incompetent, and fatally defective and bad in law;
2. The application and the appeal offend the provision of Section 75 of the Civil Procedure Act;
3. The application and the appeal are incompetent for want of leave of the Court that passed the orders being appealed and contrary to Order 43 Rules 1 (2) and 3 of the Civil Procedure Rules, 2010;
4. That the Court therefore lacks jurisdiction to hear and determine the appeal; and
5. The appeal as framed and filed is frivolous.
5. The 1st Respondent also filed Grounds of Opposition vide which he stated that the application for stay of execution and proceedings wasn’t well grounded and ought to be dismissed with costs. The grounds of opposition are dated 3rd April 2025.
6. Since the Preliminary Objection challenged this Court’s jurisdiction to hear and determine the matter, the Court ordered that the objection be heard first by way of written submissions. Both parties filed written submissions that I shall set out below.
7. The submissions of the 1st Respondent, who raised the preliminary objection, are dated 2nd May 2025. It was urged that the Court below issue orders directing the Appellant/Applicant to comply with the previous directions of the court, but that he never did so.
8. The 1st Respondent’s counsel submitted that the Preliminary Objection wasn’t based on contested facts, but on pure points of law, as the appeal was filed without leave of the Court. The 1st Respondent urged that although striking out of an appeal or application was a drastic remedy, it was unfair to drag the 1st Respondent into an appeal that was clearly a non-starter. Reliance was placed on the case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR).
9. It was urged that, without leave to appeal being granted, the appeal filed herein was defective. Reliance was placed on the decision of the Court in the case of Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) [2022] KEHC 15614 (KLR), where it was held that:-
“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.”
10. Counsel urged that the lack of leave was a blatant breach of section 75 of the Civil Procedure Act and Order 43 Rule 1 and 2 of the Civil Procedure Rules. He submitted that the application and the appeal should be dismissed with costs.
11. Regarding costs, it was urged that costs should follow the event. I was referred to section 27 of the Civil Procedure Act, which states that:-
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall, for good reason, otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
12. I was also referred to the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] KEHC 5939 (KLR) where the Court stated as follows:-
“The main reason why this Petition should be withdrawn is due to the demise of the 1st Respondent. This would call upon the Court considering ordering each party to bear their own costs. In the case of Nedbank Swaziland Ltd v Sandile Dlamini NO. (144/2010) [2013] SZHC30 (2013) Maphalala J. referred to the holding of Murray C J in the case of Levben Products v Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227, who stated as follows:
“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial Judge is given discretion (Fripp v Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place, the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”
13. The submissions of the Appellant/Applicant are dated 27th May 2025. The said party identified issues for determination as being whether it should have obtained leave to appeal, and secondly, whether the absence of such a leave is fatal to the appeal and the application before the Court.
14. The Appellant/Applicant urged that leave to appeal was not necessary/mandatory as the contempt application arose out of orders issued under Order 40 of the Civil Procedure Rules. Counsel submitted that, among the matters wherein an appeal could be filed as of right were orders ensuing from Order 40, Rules 1, 2, 3, 7, and 11 of the Civil Procedure Rule. It was also urged that the application in the Court below was based on Section 7(3) of the Contempt of Court Act, which Section does not call for leave by an aggrieved party before an appeal can be lodged.
15. The Appellant/Applicant submitted that even if there was a need for leave to appeal, the lack thereof was not fatal. Counsel relied on the case of Peter Obwogo & 2 others v HO suing as next friend of PO (minor) & another [2017] KECA 496 (KLR), Mary Wamuyu Thuku & another v Caren Wanjiku & 2 others [2022] KEHC 756 9KLR0, Acorp Gifts Kenya Ltd v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), among other cases, for the proposition that procedural technicality is a lapse of form that does not go to the root of the suit.
16. The counsel for the Appellant/Applicant submitted that its right to be heard would have been contravened, and it would have been condemned unheard if its appeal were prematurely dismissed.
17. The Appellant/Applicant beseeched the Court to rely on Articles 48, 50, and 159 (2) (d) of the Constitution and dismiss the Preliminary Objection.
18. This Court was therefore urged to dismiss the Preliminary Objection with costs to the Appellant/Applicant.
19. I have considered the application and also the preliminary objection. Since the preliminary objection would determine the matter if allowed at this stage, I am required to determine it straight away. It is only if the preliminary objection has no merit that I will determine the substantive application.
20. It would appear to me that the decision appealed against arose out of an application for an injunction under Order 40 of the Civil Procedure Act. I agree with the counsel for the Appellant/Applicant that no leave is required for decisions made pursuant to Order 40 Rules, 1, 2, 3, 7, and 11 of the Civil Procedure Act. I note that Order 40 Rule 3 of the said Rules governs contempt of Court.
21. I note that the application before the Court below was based on the Contempt of Court Act. The said Act was declared unconstitutional by the High Court in Kenya Human Rights Commission versus the Attorney General & another [2018]eKLR. In the said matter, the High Court found as follows at paragraph 98:-
“98. Having considered the petition, the response, submissions, the constitution and the law, I am persuaded that sections 30 and 35 of the Contempt of Court Act are unconstitutional. I, however, find that the entire fails the constitutional test of validity for lack of public participation and for encroaching on the independence of the judiciary. Consequently, and for the above reasons, this petition succeeds, and I make the following orders.
1. A declaration is hereby issued that Sections 30 and 35 of the impugned Contempt of Court Act No. 46 of 2010 are inconsistent with the Constitution and are therefore null and void.
2. A declaration is hereby issued that the entire Contempt of Court Act No. 46 of 2016 is invalid for lack of public participation as required by Articles 10 and 118(b) of the Constitution and encroaches on the independence of the Judiciary
3. No order as to costs.”
22. Since the Contempt of Court Act had been declared unconstitutional, the only basis upon which the Court could purport to punish the Appellant was under Order 40 Rule 3 of the Civil Procedure Rules or under the Judicature Act. Under the former, as we have seen, there is a right of appeal.
23. Even if I were in doubt as to the foregoing, which I am not, my view is that the preliminary objection is based on a technicality. In my view, the Court should give due weight to Article 159(2) (d) of the Constitution of Kenya, 2010 and prefer substantive justice rather than technicalities.
24. In the case of Acorp Gifts Kenya Limited v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), the Court stated as follows:-
“It is settled law that rules of procedure are intended to serve as the handmaidens of justice and not to defeat it. I fully associate with the decision in Henry N Gichuru vs. the Minister for Health the Kenyatta National Hospital Board (supra), where the court stated a complaint or objection based on procedural transgressions would only be upheld where such a transgression would result in injustice, hardship, or prejudice to a party objecting. The Court stated that:-
“If the court is satisfied that the effect of the rule concerned, construed in a particular way, would result in injustice, then sections 3A and 81 say that it should not be construed in such a manner. Any rule that purports to take away the inherent jurisdiction of the courts to do justice or to prevent abuse of the process of the court will normally not be upheld, and it must be looked at very carefully before it is construed in such a manner: Sir Charles Newbold, P, in Rawal v. Mombasa Hardware, Ltd [1968] EA 392, at 394.This is because Rules do not purport to be exhaustive: In re Keshavlal Punja Parbat Shah (1955), 22 EACA 381; Abdalla Mohamed v Ahmed bin Salam Makharran, (1956), 23 EACA 260. As it has been repeatedly said, the Rules of procedure are intended to serve as the handmaidens of justice, not to defeat it: Iron & Steelwares, Ltd v C W Martyr & Co (1956), 23 EACA 175; and a pathological attachment to technicality without enquiring into the essence and purpose of a rule can only work injustice. Procedural rules are not for fetishism; they are for justice. A complaint about ordinary procedure makes sense only where a transgression would be productive of injustice and undeserved hardship or prejudice.”
25. I have not seen what prejudice the 1st Respondent would suffer if the application and the appeal were heard and determined on the merits. Under the circumstances, I dismiss the Preliminary Objection with costs.
26. It is so ordered.
Dated and signed at Mombasa, this 25th day of August 2025. Delivered virtually through Microsoft TEAMS.
'
2. The Appellant filed, concomitantly with the appeal, an application for a stay of execution of the orders issued on 7th March 2025 and also for a stay of further proceedings in the Court below pending the hearing interpartes of the said application and also the hearing and determination of the appeal. The application is dated 20th March 2025.
3. This Court, upon considering the application exparte, granted prayers 2 and 3 of the said Motion and directed that the same be served for hearing interpartes on 7th April 2025.
4. Upon being served, the 1st Respondent entered an appearance through the firm of Messrs. Bwari Abiero & Associates Advocates and filed a Notice of Preliminary Objection dated 3rd April 2025 vide which they objected to the application on 5 grounds, to wit, that:-
1. The entire application and appeal, aforesaid, is invalid, incompetent, and fatally defective and bad in law;
2. The application and the appeal offend the provision of Section 75 of the Civil Procedure Act;
3. The application and the appeal are incompetent for want of leave of the Court that passed the orders being appealed and contrary to Order 43 Rules 1 (2) and 3 of the Civil Procedure Rules, 2010;
4. That the Court therefore lacks jurisdiction to hear and determine the appeal; and
5. The appeal as framed and filed is frivolous.
5. The 1st Respondent also filed Grounds of Opposition vide which he stated that the application for stay of execution and proceedings wasn’t well grounded and ought to be dismissed with costs. The grounds of opposition are dated 3rd April 2025.
6. Since the Preliminary Objection challenged this Court’s jurisdiction to hear and determine the matter, the Court ordered that the objection be heard first by way of written submissions. Both parties filed written submissions that I shall set out below.
7. The submissions of the 1st Respondent, who raised the preliminary objection, are dated 2nd May 2025. It was urged that the Court below issue orders directing the Appellant/Applicant to comply with the previous directions of the court, but that he never did so.
8. The 1st Respondent’s counsel submitted that the Preliminary Objection wasn’t based on contested facts, but on pure points of law, as the appeal was filed without leave of the Court. The 1st Respondent urged that although striking out of an appeal or application was a drastic remedy, it was unfair to drag the 1st Respondent into an appeal that was clearly a non-starter. Reliance was placed on the case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR).
9. It was urged that, without leave to appeal being granted, the appeal filed herein was defective. Reliance was placed on the decision of the Court in the case of Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) [2022] KEHC 15614 (KLR), where it was held that:-
“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.”
10. Counsel urged that the lack of leave was a blatant breach of section 75 of the Civil Procedure Act and Order 43 Rule 1 and 2 of the Civil Procedure Rules. He submitted that the application and the appeal should be dismissed with costs.
11. Regarding costs, it was urged that costs should follow the event. I was referred to section 27 of the Civil Procedure Act, which states that:-
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall, for good reason, otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
12. I was also referred to the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] KEHC 5939 (KLR) where the Court stated as follows:-
“The main reason why this Petition should be withdrawn is due to the demise of the 1st Respondent. This would call upon the Court considering ordering each party to bear their own costs. In the case of Nedbank Swaziland Ltd v Sandile Dlamini NO. (144/2010) [2013] SZHC30 (2013) Maphalala J. referred to the holding of Murray C J in the case of Levben Products v Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227, who stated as follows:
“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial Judge is given discretion (Fripp v Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place, the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”
13. The submissions of the Appellant/Applicant are dated 27th May 2025. The said party identified issues for determination as being whether it should have obtained leave to appeal, and secondly, whether the absence of such a leave is fatal to the appeal and the application before the Court.
14. The Appellant/Applicant urged that leave to appeal was not necessary/mandatory as the contempt application arose out of orders issued under Order 40 of the Civil Procedure Rules. Counsel submitted that, among the matters wherein an appeal could be filed as of right were orders ensuing from Order 40, Rules 1, 2, 3, 7, and 11 of the Civil Procedure Rule. It was also urged that the application in the Court below was based on Section 7(3) of the Contempt of Court Act, which Section does not call for leave by an aggrieved party before an appeal can be lodged.
15. The Appellant/Applicant submitted that even if there was a need for leave to appeal, the lack thereof was not fatal. Counsel relied on the case of Peter Obwogo & 2 others v HO suing as next friend of PO (minor) & another [2017] KECA 496 (KLR), Mary Wamuyu Thuku & another v Caren Wanjiku & 2 others [2022] KEHC 756 9KLR0, Acorp Gifts Kenya Ltd v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), among other cases, for the proposition that procedural technicality is a lapse of form that does not go to the root of the suit.
16. The counsel for the Appellant/Applicant submitted that its right to be heard would have been contravened, and it would have been condemned unheard if its appeal were prematurely dismissed.
17. The Appellant/Applicant beseeched the Court to rely on Articles 48, 50, and 159 (2) (d) of the Constitution and dismiss the Preliminary Objection.
18. This Court was therefore urged to dismiss the Preliminary Objection with costs to the Appellant/Applicant.
19. I have considered the application and also the preliminary objection. Since the preliminary objection would determine the matter if allowed at this stage, I am required to determine it straight away. It is only if the preliminary objection has no merit that I will determine the substantive application.
20. It would appear to me that the decision appealed against arose out of an application for an injunction under Order 40 of the Civil Procedure Act. I agree with the counsel for the Appellant/Applicant that no leave is required for decisions made pursuant to Order 40 Rules, 1, 2, 3, 7, and 11 of the Civil Procedure Act. I note that Order 40 Rule 3 of the said Rules governs contempt of Court.
21. I note that the application before the Court below was based on the Contempt of Court Act. The said Act was declared unconstitutional by the High Court in Kenya Human Rights Commission versus the Attorney General & another [2018]eKLR. In the said matter, the High Court found as follows at paragraph 98:-
“98. Having considered the petition, the response, submissions, the constitution and the law, I am persuaded that sections 30 and 35 of the Contempt of Court Act are unconstitutional. I, however, find that the entire fails the constitutional test of validity for lack of public participation and for encroaching on the independence of the judiciary. Consequently, and for the above reasons, this petition succeeds, and I make the following orders.
1. A declaration is hereby issued that Sections 30 and 35 of the impugned Contempt of Court Act No. 46 of 2010 are inconsistent with the Constitution and are therefore null and void.
2. A declaration is hereby issued that the entire Contempt of Court Act No. 46 of 2016 is invalid for lack of public participation as required by Articles 10 and 118(b) of the Constitution and encroaches on the independence of the Judiciary
3. No order as to costs.”
22. Since the Contempt of Court Act had been declared unconstitutional, the only basis upon which the Court could purport to punish the Appellant was under Order 40 Rule 3 of the Civil Procedure Rules or under the Judicature Act. Under the former, as we have seen, there is a right of appeal.
23. Even if I were in doubt as to the foregoing, which I am not, my view is that the preliminary objection is based on a technicality. In my view, the Court should give due weight to Article 159(2) (d) of the Constitution of Kenya, 2010 and prefer substantive justice rather than technicalities.
24. In the case of Acorp Gifts Kenya Limited v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), the Court stated as follows:-
“It is settled law that rules of procedure are intended to serve as the handmaidens of justice and not to defeat it. I fully associate with the decision in Henry N Gichuru vs. the Minister for Health the Kenyatta National Hospital Board (supra), where the court stated a complaint or objection based on procedural transgressions would only be upheld where such a transgression would result in injustice, hardship, or prejudice to a party objecting. The Court stated that:-
“If the court is satisfied that the effect of the rule concerned, construed in a particular way, would result in injustice, then sections 3A and 81 say that it should not be construed in such a manner. Any rule that purports to take away the inherent jurisdiction of the courts to do justice or to prevent abuse of the process of the court will normally not be upheld, and it must be looked at very carefully before it is construed in such a manner: Sir Charles Newbold, P, in Rawal v. Mombasa Hardware, Ltd [1968] EA 392, at 394.This is because Rules do not purport to be exhaustive: In re Keshavlal Punja Parbat Shah (1955), 22 EACA 381; Abdalla Mohamed v Ahmed bin Salam Makharran, (1956), 23 EACA 260. As it has been repeatedly said, the Rules of procedure are intended to serve as the handmaidens of justice, not to defeat it: Iron & Steelwares, Ltd v C W Martyr & Co (1956), 23 EACA 175; and a pathological attachment to technicality without enquiring into the essence and purpose of a rule can only work injustice. Procedural rules are not for fetishism; they are for justice. A complaint about ordinary procedure makes sense only where a transgression would be productive of injustice and undeserved hardship or prejudice.”
25. I have not seen what prejudice the 1st Respondent would suffer if the application and the appeal were heard and determined on the merits. Under the circumstances, I dismiss the Preliminary Objection with costs.
26. It is so ordered.
Dated and signed at Mombasa, this 25th day of August 2025. Delivered virtually through Microsoft TEAMS.
'