1. The Applicant’s notice of motion dated 7th December, 2024 is expressed to be brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Orders 42 Rule 6, Order 43 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules and all enabling provisions of the law and seeks the following orders:
a. [Spent].
b. [Spent].
c. THAT this Honourable court be pleased to stay execution of the judgment and the accompanying decree of the subordinate court in Kisumu MCCC No. 28 of 2020 (Hon. R.K. Ondieki, SPM) and any other consequential orders arising therefrom, pending the hearing and determination of the hearing and determination of the intended Appeal.
d. THAT this Honourable court be pleased to grant the Applicant leave to appeal against the ruling of the subordinate court (Hon. R.K. Ondieki, SPM) delivered on the 31st August, 2023, in Kisumu MCCC No. 28 of 2020.
e. THAT upon leave being granted, this Honourable court be pleased to grant the Applicant leave to appeal out of time against the ruling of the subordinate court (Hon. R.K. Ondieki, SPM) delivered on the 31st August, 2023, in Kisumu MCCC No. 28 of 2020.
f. THAT this Honorable Court be pleased to enlarge time within which to appeal the ruling of the subordinate Court (Hon. R.K. Ondieki, SPM) delivered on the 31/8/2023, in Kisumu MCCC No.28 of 2020.
g. THAT the costs of this Application be provided.
2. The grounds upon which the application is premised are set out on its face.
3. The Applicant avers that a ruling on its earlier motion application dated 15th July, 2021, which sought inter alia orders of review and/or setting aside the garnishee order absolute made on 12th July, 2021, was delivered by the trial court on 31st August, 2023, dismissing the motion with costs awarded to the 1st Respondent.
4. In the said motion, the Applicant states that it contended and demonstrated with supporting evidence, that the 2nd Respondent/Judgment Debtor’s account (No. 0180298187300) had a balance of only Ksh.1,120.00/-, insufficient to satisfy the decretal amount of Ksh.1,607,750/-.
5. The Applicant further states that it sought to demonstrate this insufficiency if the garnishee order absolute was set aside, thereby allowing it to participate meaningfully in the 1st Respondent’s motion dated 28th June 2021.
6. The Applicant further contends that it filed an appeal to the High Court via Kisumu HCCA No. E110 of 2021 against the trial court’s ruling of 31st August, 2023, as outlined in its Memorandum of Appeal dated 15th September, 2021. However, my learned Sister Aburili J. observed that the Applicant had not sought leave to appeal at the trial court, which made it difficult for the Court to ascertain whether leave was indeed requested and granted.
7. Consequently, the Applicant was compelled to withdraw the appeal and now seeks to obtain leave appropriately from this Honorable Court to appeal the ruling out of time, recognizing that the statutory time limit for appeal under Section 79G of the Civil Procedure Act has since lapsed.
8. The Applicant contends that the current application is made in good faith and that no prejudice will be occasioned to the Respondent if the Court grants the requested leave to appeal.
9. The application is supported by the affidavit of Samuel Wamaitha, the Applicant’s Assistant Manager, Legal Services. The said deponent avers that on 13th July 2021, the Applicant was served with a garnishee order absolute, requiring it to pay Ksh.1,607,750/- to the 1st Respondent from the 2nd Respondent/Judgment Debtor’s account number 0180298187300.
10. The deponent states that immediately upon receipt of the order, the Applicant instructed its Advocates, to enter appearance and defend the bank’s interests. The Advocates filed a notice of motion application dated 15th July, 2021 under certificate of urgency, seeking inter alia review and/or setting aside of the garnishee order absolute and leave for the bank to participate in the garnishee proceedings.
11. The deponent asserts in his affidavit that the trial court dismissed its motion on 31st August, 2023, and awarded costs to the 1st Respondent.
12. Being dissatisfied with the ruling, the Applicant filed an appeal to the High Court via Kisumu HCCA No. E110 of 2021, relying on the grounds in its memorandum of appeal dated 15th September, 2021. He states that during the proceedings in the appeal, Aburili J. noted that the bank had not formally sought leave to appeal at the trial court. The deponent avers that leave had indeed been sought but was not recorded, compelling the bank to withdraw the appeal and now seek leave appropriately from this Honorable Court.
13. The Applicant appreciates through the affidavit in support of its application that appeals from matters of this nature do not lie as of right under Section 75(1)(h) of the Civil Procedure Act as read with Order 43 Rule 1 of the Civil Procedure Rules, making it necessary for the bank to seek leave. He states that the trial court could not extend the statutory time limit, necessitating this application to this Court. He cites Section 79G of the Civil Procedure Act to justify seeking of leave out of time, as the statutory period of 30 days for appeal has since lapsed.
14. The deponent explains that the delay arose due to procedural misunderstandings and staggered appeal proceedings between 2021 and 2024, during which the Applicant acted on the reasonable presumption that leave had been sought at the trial court.
15. The deponent further states that the 2nd Respondent’s account at the time of the issuance of the garnishee order absolute had only Ksh.1,120/-, insufficient to satisfy the decretal sum, and that forcing the Applicant to pay the decretal amount would result in undue prejudice. He contends that having complied with court directions to deposit the decretal sum in a joint-interest earning account, the no prejudice will be occasioned to the Respondents if leave is granted. He states that granting leave will enable the Court, sitting as an appellate court, to consider the substantive issues raised in the appeal.
16. The deponent further states that the Applicant undertakes, if leave is granted, to promptly set down the the appeal for hearing in accordance with the Court’s diary, as the record of appeal has already been prepared, while adding that the application has been brought in good faith and in the wider interests of justice, warranting that the prayers sought be granted.
17. In his replying affidavit sworn on 14th January, 2025, the 1st Respondent’s Counsel, Mr. Gideon Odongo avers that there was no legal or other basis for the Applicant to withdraw its appeal, and having done so, the Applicant must face the consequences of that withdrawal.
18. Counsel for the 1st Respondent states that the decretal sum had been deposited in a joint interest earning account specifically for the due performance of the decree and that with the withdrawal of the appeal, the purpose for which the account was opened was completed and the Applicant’s assertion that it is dependent on depositors’ funds is misplaced, as the funds deposited were security for the decree and not depositors’ monies.
19. Counsel further states that the present application for extension or enlargement of time is belated and appears intended to frustrate the 1st Respondent from realizing the fruits of the judgement, as no attempt was made by the Applicant to rectify the purported defect in its appeal before withdrawal.
20. Counsel further asserts that the appeal was withdrawn on 8th April, 2024, and the present application for extension of time was filed nine months later, only after an application for execution had been made. This, in the 1st Respondent’s view, demonstrates that the application is an afterthought designed solely to delay or deny the 1st Respondent the fruits of its judgement.
21. Counsel further contends that the application is incompetent, belated and therefore ought to be dismissed.
22. The application was canvassed by way of written submissions.
23. Learned Counsel for the Applicant submits and sets out the issues for determination to be whether the Applicant should be granted leave to appeal, and whether such leave should be granted out of time.
24. Counsel submits that upon being served with a garnishee order absolute requiring payment of Ksh.1,607,750/-, the Applicant examined the 2nd Respondent’s account and established that the account held a credit balance of only Ksh.1,120/-, which was insufficient to satisfy the decretal sum. Consequently, the Applicant filed an application dated 15th July, 2021 seeking to set aside the garnishee order absolute on the ground of insufficiency of funds. However, that application was dismissed by the trial court in a ruling delivered on 31st August 2023.
25. Being dissatisfied with the ruling, the Applicant filed an appeal before the High Court challenging the decision. However, during the appeal proceedings, the appellate court observed that there was no record indicating that leave to appeal had been sought or granted by the trial court. In view of the principle that courts are courts of record, the absence of such a record made it impossible for the appellate court to confirm whether leave had indeed been granted.
26. Counsel submits that because the appeal in question did not lie as of right under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, leave of the court was a prerequisite for the appellate court to assume jurisdiction. Reliance is placed on the decision in Isaac Mbugua Ngirachu v Stephen Gichobi Kaara [2021] KEHC 8022 (KLR) which the court, citing Nyutu Agrovet v Airtel Networks Ltd [2015] eKLR, held that where leave to appeal is required but has not been obtained, the appellate court lacks jurisdiction to hear the appeal.
27. Counsel therefore submits that the Applicant acted prudently in withdrawing the appeal and approaching the court for leave to appeal, as the absence of leave rendered the earlier appeal incompetent. Counsel argues that the Respondent’s contention that the withdrawal lacked legal basis is therefore unfounded.
28. Counsel further submits that the intended appeal raises substantial and arguable grounds with a high probability of success. In particular, it is contended that the learned trial Magistrate erred in declining to set aside the garnishee order absolute despite evidence showing that the funds in the judgment debtor’s account were insufficient to satisfy the decree and that the funds previously reflected in the account had already been attached pursuant to earlier garnishee orders issued by other courts.
29. According to the Applicant, the trial court failed to properly appreciate that the withdrawals reflected in the account were payments made in compliance with earlier court orders and that the bank had a legal obligation to honour such orders on a first-in-time basis. Consequently, by the time the relevant garnishee order nisi was served upon the Applicant, the funds available in the account were insufficient to satisfy the decree.
30. On the issue of extension of time, Counsel submits that the court has discretion to enlarge time under Section 79G of the Civil Procedure Act. He relies on the authority of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, in which the court stated that in considering whether to extend time, the court must evaluate factors such as the length of delay, the reasons for the delay, the chances of success of the intended appeal and the degree of prejudice to the Respondent.
31. Counsel further relies on the principles set out by the Supreme Court in Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, in which the court emphasized that extension of time is a discretionary remedy to be granted on a case by case basis, upon satisfactory explanation of the delay and consideration of whether prejudice will be occasioned to the opposing party.
32. He submits that the delay in bringing the present application was not deliberate but was occasioned by the fact that the Applicant had already filed an appeal within the prescribed period and the matter proceeded before the appellate court for several years under the presumption that leave to appeal had been properly sought and granted. Once it became apparent that the record did not reflect the grant of leave, the Applicant promptly withdrew the appeal and filed the present application.
33. Counsel urges that no prejudice will be occasioned to the 1st Respondent if the orders sought are granted because the decretal sum remains deposited in a joint interest-earning account in the names of the parties’ advocates, thereby securing the 1st Respondent’s interests, pending the determination of the appeal.
34. On the other hand, he submits that the Applicant stands to suffer greater prejudice if the orders sought are denied, as the Applicant, being a financial institution, would be compelled to satisfy the decretal sum from its own resources despite the fact that the judgment debtor’s account held insufficient funds and the Applicant was not a party to the underlying dispute.
35. Counsel therefore submits that the Applicant has satisfactorily explained the delay, demonstrated the existence of arguable grounds of appeal and shown that no prejudice will be occasioned to the Respondents if the application is allowed. He urges the court to find that the Applicant has met the threshold for the grant of leave to appeal and leave to appeal out of time and to allow the application so that the intended appeal may be heard and determined on its merits.
36. On his part, learned Counsel for the 1st Respondent submits that the present application was filed after an inordinate and unexplained delay. It is pointed out that the previous appeal was withdrawn on 8th April, 2024 while the present application was only filed on 9th December, 2024, a period of more than eight months. He argues that the Applicant has failed to provide a reasonable explanation for the delay and that the application was only filed after the 1st Respondent initiated execution proceedings. According to Counsel, such delay demonstrates indolence and an attempt to frustrate the Respondent from enjoying the fruits of a lawful judgment.
37. Learned Counsel for the 1st Respondent submits that Order 43 Rule 3 of the Civil Procedure Rules expressly requires that an application for leave to appeal be made either orally at the time the order is delivered or within fourteen days from the date of the order. According to Counsel, once the statutory period lapses, the only available recourse is to first seek enlargement of time under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules before making any other substantive prayer.
38. Counsel submits that the Applicant failed to seek enlargement of time within which to apply for leave to appeal and instead proceeded to seek leave directly, thereby rendering the application incompetent. He places reliance on the case of Machakos County v Kapiti Plains Estate Ltd & Another [2019] eKLR, where the court held that failure to seek leave to appeal within the prescribed period, or to apply for extension of time, renders such an application unmeritorious.
39. Counsel further submits that Article 159 of the Constitution cannot be invoked to cure non-compliance with mandatory procedural timelines. In that regard, he relies on the authority of Charles Wanjohi Wathuku v Githinji Ngure & Another, Civil Application No. 9 of 2016, where the court emphasized that statutory timelines are not mere technicalities that can be overlooked under Article 159.
40. Counsel for the 1st Respondent further argues that the present application is brought before the wrong forum. He submits that under Order 43 Rule 3 of the Civil Procedure Rules, leave to appeal must in the first instance be sought from the court that made the order intended to be appealed against. In the present case, that court is the subordinate court.
41. Counsel therefore submits that by approaching the High Court directly without first seeking leave before the subordinate court, the Applicant failed to follow the prescribed statutory procedure, thereby depriving the High Court of jurisdiction to entertain the application.
42. In support of that argument, reliance is placed on the decision in Tasmac Limited v Robertio Macri & 3 Others, Civil Application No. 6 of 2017, where the Court of Appeal held that where leave to appeal is required, such leave must first be obtained from the court that made the impugned order, and failure to do so renders subsequent proceedings incompetent.
43. He also relies on Diamond Trust Bank Limited v Invesco Assurance Co. Ltd & Another [2021] eKLR, where the court reiterated that where the law prescribes a specific procedure for redress, that procedure must be strictly followed.
44. Reference is also made to the Court of Appeal decision in Speaker of the National Assembly v James Njenga Karume [1992] eKLR, which emphasized the necessity of adhering to statutory procedures for dispute resolution.
45. Further reliance is placed on Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR and Nyutu Agrovet Limited v Airtel Networks Ltd [2015] eKLR, which underscore that where leave to appeal is required but has not been sought and obtained, the appellate court lacks jurisdiction to entertain the appeal or any related applications.
46. Counsel also cites Ziporah Moraa v David Okioma & Another [2020] eKLR to support the proposition that an application relating to leave to appeal must be made before the court that delivered the impugned decision and that failure to do so renders such an application incompetent.
47. In that respect, reliance is placed on the authority of Transtrade Services Limited v Sudi Salim Said & Salim Said (Suing as the Administrators Ad Litem of the Estate of Said Salim Said) [2021] eKLR, where the court held that unexplained delay in bringing an application for extension of time renders the delay inexcusable.
48. Counsel also relies on Joseph Odide Walome v David Mbadi Akello [2022] eKLR, where the court held that unexplained delay of several months in filing an application for extension of time constitutes inordinate delay and may lead to dismissal of the application.
49. In conclusion, Counsel submits that the application is incompetent for failure to seek enlargement of time within which to apply for leave to appeal, for having been brought before the wrong forum and for having been filed after an inordinate and unexplained delay. This court is therefore urged to dismiss the application with costs to the 1st Respondent.
50. Having carefully considered the application, the affidavits on record, and the rival submissions by Counsel for the parties, the Court is of the view that the issues that arise for determination in this matter may be condensed into four broad questions.
51. The first issue for determination is whether the present application is competent in light of the 1st Respondent’s contention that the Applicant ought to have sought leave to appeal in the first instance before the subordinate court which delivered the impugned ruling, and whether this Court therefore has jurisdiction to entertain the application as framed.
52. The second issue for determination is whether the Applicant has established sufficient cause to warrant the grant of leave to appeal against the ruling of the subordinate court delivered on 31st August, 2023 in Kisumu MCCC No. 28 of 2020, having regard to the eight (8) months delay from the withdrawal of the previous appeal on 8th April, 2024 to the filing of the present application on 9th December, 2024.
53. The third issue for determination is whether the Applicant has satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal, having regard to the period that has elapsed since the impugned ruling and the explanation offered for the delay.
54. The fourth and final issue for determination is whether the Applicant has made out a case for the grant of an order of stay of execution of the decree and any consequential orders arising from the judgment in Kisumu MCCC No. 28 of 2020 pending the hearing and determination of the intended appeal.
55. I will proceed to address the four issues.
56. The first issue for determination is whether the present application is competent and properly before this Court in view of the 1st Respondent’s contention that leave to appeal ought to have been sought in the first instance before the subordinate court which delivered the impugned ruling.
57. The right of appeal is not automatic in every instance. It is a creature of statute and must be exercised strictly within the framework provided by the law. Section 75 of the Civil Procedure Act, together with Order 43 of the Civil Procedure Rules, set out the orders from which appeals lie as of right and those which require leave of the court. Where an order does not fall within the category of appealable orders as of right, a party intending to appeal must first obtain leave of the court.
58. The importance of obtaining leave where it is required has been emphasized by the superior courts. In Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR, the Court of Appeal stated that:
“Where there is no automatic right of appeal stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, then the appellate court has no jurisdiction to hear and determine an appeal unless leave of the court from which the order was made is sought and obtained.”
59. This authority underscores the principle that leave to appeal is a jurisdictional prerequisite where the law requires it.
60. Similarly, the Court of Appeal in Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR reiterated that failure to obtain leave where it is required renders subsequent appellate proceedings incompetent. The Court observed that:
“Without leave of the High Court, the applicant was not entitled to give Notice of Appeal where leave to appeal is necessary by dint of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules; the procurement of leave to appeal is sine qua non to the lodging of the Notice of Appeal.”
61. The Court went on to note that without such leave, the appellate court’s jurisdiction is not properly invoked.
62. The Civil Procedure Rules further prescribe the forum in which such leave ought to be sought. Order 43 Rule 3 provides that an application for leave to appeal shall in the first instance be made to the court making the order sought to be appealed against, either orally at the time the order is made or within fourteen days of the order.
63. The courts have consistently emphasized the need to adhere to procedures laid down in statute. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal held that:
“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
64. Leave to appeal, where there is no automatic right of appeal, must be from the originating court. This principle is applied by the courts to ensure that litigants do not circumvent statutory procedures.
65. In the present case, it is not disputed that the Applicant initially filed an appeal before the High Court challenging the ruling of the subordinate court delivered on 31st August, 2023. However, during the course of those proceedings, it became apparent that the record of the trial court did not reflect whether leave to appeal had been sought or granted.
66. Faced with that uncertainty, the Applicant withdrew the appeal and has now approached this Court seeking leave to appeal and enlargement of time, without first seeking leave from the Subordinate Court which delivered.
67. The Applicant’s direct application to this Court, without having exhausted the statutory requirement to obtain leave from the Subordinate Court, contravenes the mandatory provisions of Order 43 Rule 3.
68. Based on the above authorities and the facts, the Court finds that the Applicant’s failure to seek leave from the court of first instance renders the application improperly before this Court. The principle of strict adherence to statutory procedure is central to ensuring judicial discipline and preventing forum shopping. As such, the application is incompetent. Consequently, this Honorable Court cannot grant leave to appeal under these circumstances.
69. I will now turn to the second and third issues, which I will address together.
70. The second issue for determination is whether the Applicant has demonstrated sufficient cause to justify the grant of leave to appeal out of time, having regard to the eight (8) months delay from the withdrawal of the previous appeal on 8th April, 2024 to the filing of the present application on 9th December, 2024 while the third issue is whether the Applicant has satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal, having regard to the period that has elapsed since the impugned ruling and the explanation offered for the delay.
71. It is well established in law that the grant of leave to appeal out of time is a discretionary remedy, which can only be exercised where the Applicant demonstrates a satisfactory explanation for the delay and shows that the intended appeal has a reasonable prospect of success. Delay that is inordinate or unexplained militates against the exercise of judicial discretion in favour of the Applicant.
72. In Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated:
“Extension of time being a creature of equity, one can only enjoy it if one acts equitably; he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time lapse.”
73. Similarly, in Transtrade Services Limited v Sudi Salim Said & Salim Said (Suing as the Administrators Ad Litem of the Estate of Said Salim Said) [2021] eKLR, the court held:
“Unexplained delay in bringing an application for extension of time renders the delay inordinate and inexcusable. A party who has delayed cannot expect the court to exercise discretion in their favour without providing a credible explanation.”
74. My understanding of what the Courts said in the two decisions is that unexplained or inordinate delay precludes the court from properly exercising its discretion.
75. In the present case, the Applicant filed the current application eight (8) months after withdrawing the previous appeal. No explanation has been provided for this prolonged delay.
76. The Applicant attributes the delay to a “procedural misunderstanding” and reliance on the assumption that leave to appeal had been properly sought, yet no contemporaneous steps were taken to clarify the status of the initial appeal or to move the subordinate court for leave within a reasonable time.
77. The law is clear that an Applicant must provide a satisfactory explanation for delay in order to move the court to exercise discretion in their favour. In the case of Joseph Odide Walome v David Mbadi Akello [2022] eKLR, the court emphasized:
“Unexplained delay of several months in filing an application for extension of time constitutes inordinate delay and may lead to dismissal of the application.”
78. In this instance, the Applicant has failed to provide any reasonable explanation for the eight-month delay. As a result, the Court has not been properly moved to exercise its discretion to grant leave to appeal out of time. The delay is not merely technical but substantial and unexplained, rendering the application defective and unmeritorious.
79. The Court therefore finds that, on the basis of the inordinate and unexplained delay, the Applicant has not satisfied the requirements under Section 79G of the Civil Procedure Act and relevant rules to justify an extension of time. The Applicant has also not satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal,
80. Accordingly, the application for leave to appeal out of time cannot be granted, and the Court declines to exercise its discretion in favour of the Applicant.
81. The fourth issue for determination is whether the Applicant has shown that the interests of justice or absence of prejudice warrant the grant of leave to appeal out of time.
82. It is well established that the grant of leave to appeal out of time is discretionary and requires the applicant to provide a satisfactory explanation for any delay, demonstrate arguable grounds of appeal and show that the opposing party will not suffer prejudice. In Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court held:
“In considering whether to extend time, the court must evaluate the length of delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the Respondent.”
83. In the this case, the Applicant filed the current application on 9th December, 2024, over eight months after withdrawing the previous appeal on 8th April, 2024. As I have already found, the delay is inordinate and remains unexplained. We have also seen that the application was filed directly in this Court without first seeking leave from the Subordinate Court, contrary to the mandatory procedure under Order 43 Rule 3 of the Civil Procedure Rules.
84. Having already found under the previous issues that the application is incompetent, procedurally defective and filed after an inordinate and unexplained delay, the issue of prejudice or interests o
[...truncated]
a. [Spent].
b. [Spent].
c. THAT this Honourable court be pleased to stay execution of the judgment and the accompanying decree of the subordinate court in Kisumu MCCC No. 28 of 2020 (Hon. R.K. Ondieki, SPM) and any other consequential orders arising therefrom, pending the hearing and determination of the hearing and determination of the intended Appeal.
d. THAT this Honourable court be pleased to grant the Applicant leave to appeal against the ruling of the subordinate court (Hon. R.K. Ondieki, SPM) delivered on the 31st August, 2023, in Kisumu MCCC No. 28 of 2020.
e. THAT upon leave being granted, this Honourable court be pleased to grant the Applicant leave to appeal out of time against the ruling of the subordinate court (Hon. R.K. Ondieki, SPM) delivered on the 31st August, 2023, in Kisumu MCCC No. 28 of 2020.
f. THAT this Honorable Court be pleased to enlarge time within which to appeal the ruling of the subordinate Court (Hon. R.K. Ondieki, SPM) delivered on the 31/8/2023, in Kisumu MCCC No.28 of 2020.
g. THAT the costs of this Application be provided.
2. The grounds upon which the application is premised are set out on its face.
3. The Applicant avers that a ruling on its earlier motion application dated 15th July, 2021, which sought inter alia orders of review and/or setting aside the garnishee order absolute made on 12th July, 2021, was delivered by the trial court on 31st August, 2023, dismissing the motion with costs awarded to the 1st Respondent.
4. In the said motion, the Applicant states that it contended and demonstrated with supporting evidence, that the 2nd Respondent/Judgment Debtor’s account (No. 0180298187300) had a balance of only Ksh.1,120.00/-, insufficient to satisfy the decretal amount of Ksh.1,607,750/-.
5. The Applicant further states that it sought to demonstrate this insufficiency if the garnishee order absolute was set aside, thereby allowing it to participate meaningfully in the 1st Respondent’s motion dated 28th June 2021.
6. The Applicant further contends that it filed an appeal to the High Court via Kisumu HCCA No. E110 of 2021 against the trial court’s ruling of 31st August, 2023, as outlined in its Memorandum of Appeal dated 15th September, 2021. However, my learned Sister Aburili J. observed that the Applicant had not sought leave to appeal at the trial court, which made it difficult for the Court to ascertain whether leave was indeed requested and granted.
7. Consequently, the Applicant was compelled to withdraw the appeal and now seeks to obtain leave appropriately from this Honorable Court to appeal the ruling out of time, recognizing that the statutory time limit for appeal under Section 79G of the Civil Procedure Act has since lapsed.
8. The Applicant contends that the current application is made in good faith and that no prejudice will be occasioned to the Respondent if the Court grants the requested leave to appeal.
9. The application is supported by the affidavit of Samuel Wamaitha, the Applicant’s Assistant Manager, Legal Services. The said deponent avers that on 13th July 2021, the Applicant was served with a garnishee order absolute, requiring it to pay Ksh.1,607,750/- to the 1st Respondent from the 2nd Respondent/Judgment Debtor’s account number 0180298187300.
10. The deponent states that immediately upon receipt of the order, the Applicant instructed its Advocates, to enter appearance and defend the bank’s interests. The Advocates filed a notice of motion application dated 15th July, 2021 under certificate of urgency, seeking inter alia review and/or setting aside of the garnishee order absolute and leave for the bank to participate in the garnishee proceedings.
11. The deponent asserts in his affidavit that the trial court dismissed its motion on 31st August, 2023, and awarded costs to the 1st Respondent.
12. Being dissatisfied with the ruling, the Applicant filed an appeal to the High Court via Kisumu HCCA No. E110 of 2021, relying on the grounds in its memorandum of appeal dated 15th September, 2021. He states that during the proceedings in the appeal, Aburili J. noted that the bank had not formally sought leave to appeal at the trial court. The deponent avers that leave had indeed been sought but was not recorded, compelling the bank to withdraw the appeal and now seek leave appropriately from this Honorable Court.
13. The Applicant appreciates through the affidavit in support of its application that appeals from matters of this nature do not lie as of right under Section 75(1)(h) of the Civil Procedure Act as read with Order 43 Rule 1 of the Civil Procedure Rules, making it necessary for the bank to seek leave. He states that the trial court could not extend the statutory time limit, necessitating this application to this Court. He cites Section 79G of the Civil Procedure Act to justify seeking of leave out of time, as the statutory period of 30 days for appeal has since lapsed.
14. The deponent explains that the delay arose due to procedural misunderstandings and staggered appeal proceedings between 2021 and 2024, during which the Applicant acted on the reasonable presumption that leave had been sought at the trial court.
15. The deponent further states that the 2nd Respondent’s account at the time of the issuance of the garnishee order absolute had only Ksh.1,120/-, insufficient to satisfy the decretal sum, and that forcing the Applicant to pay the decretal amount would result in undue prejudice. He contends that having complied with court directions to deposit the decretal sum in a joint-interest earning account, the no prejudice will be occasioned to the Respondents if leave is granted. He states that granting leave will enable the Court, sitting as an appellate court, to consider the substantive issues raised in the appeal.
16. The deponent further states that the Applicant undertakes, if leave is granted, to promptly set down the the appeal for hearing in accordance with the Court’s diary, as the record of appeal has already been prepared, while adding that the application has been brought in good faith and in the wider interests of justice, warranting that the prayers sought be granted.
17. In his replying affidavit sworn on 14th January, 2025, the 1st Respondent’s Counsel, Mr. Gideon Odongo avers that there was no legal or other basis for the Applicant to withdraw its appeal, and having done so, the Applicant must face the consequences of that withdrawal.
18. Counsel for the 1st Respondent states that the decretal sum had been deposited in a joint interest earning account specifically for the due performance of the decree and that with the withdrawal of the appeal, the purpose for which the account was opened was completed and the Applicant’s assertion that it is dependent on depositors’ funds is misplaced, as the funds deposited were security for the decree and not depositors’ monies.
19. Counsel further states that the present application for extension or enlargement of time is belated and appears intended to frustrate the 1st Respondent from realizing the fruits of the judgement, as no attempt was made by the Applicant to rectify the purported defect in its appeal before withdrawal.
20. Counsel further asserts that the appeal was withdrawn on 8th April, 2024, and the present application for extension of time was filed nine months later, only after an application for execution had been made. This, in the 1st Respondent’s view, demonstrates that the application is an afterthought designed solely to delay or deny the 1st Respondent the fruits of its judgement.
21. Counsel further contends that the application is incompetent, belated and therefore ought to be dismissed.
22. The application was canvassed by way of written submissions.
23. Learned Counsel for the Applicant submits and sets out the issues for determination to be whether the Applicant should be granted leave to appeal, and whether such leave should be granted out of time.
24. Counsel submits that upon being served with a garnishee order absolute requiring payment of Ksh.1,607,750/-, the Applicant examined the 2nd Respondent’s account and established that the account held a credit balance of only Ksh.1,120/-, which was insufficient to satisfy the decretal sum. Consequently, the Applicant filed an application dated 15th July, 2021 seeking to set aside the garnishee order absolute on the ground of insufficiency of funds. However, that application was dismissed by the trial court in a ruling delivered on 31st August 2023.
25. Being dissatisfied with the ruling, the Applicant filed an appeal before the High Court challenging the decision. However, during the appeal proceedings, the appellate court observed that there was no record indicating that leave to appeal had been sought or granted by the trial court. In view of the principle that courts are courts of record, the absence of such a record made it impossible for the appellate court to confirm whether leave had indeed been granted.
26. Counsel submits that because the appeal in question did not lie as of right under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, leave of the court was a prerequisite for the appellate court to assume jurisdiction. Reliance is placed on the decision in Isaac Mbugua Ngirachu v Stephen Gichobi Kaara [2021] KEHC 8022 (KLR) which the court, citing Nyutu Agrovet v Airtel Networks Ltd [2015] eKLR, held that where leave to appeal is required but has not been obtained, the appellate court lacks jurisdiction to hear the appeal.
27. Counsel therefore submits that the Applicant acted prudently in withdrawing the appeal and approaching the court for leave to appeal, as the absence of leave rendered the earlier appeal incompetent. Counsel argues that the Respondent’s contention that the withdrawal lacked legal basis is therefore unfounded.
28. Counsel further submits that the intended appeal raises substantial and arguable grounds with a high probability of success. In particular, it is contended that the learned trial Magistrate erred in declining to set aside the garnishee order absolute despite evidence showing that the funds in the judgment debtor’s account were insufficient to satisfy the decree and that the funds previously reflected in the account had already been attached pursuant to earlier garnishee orders issued by other courts.
29. According to the Applicant, the trial court failed to properly appreciate that the withdrawals reflected in the account were payments made in compliance with earlier court orders and that the bank had a legal obligation to honour such orders on a first-in-time basis. Consequently, by the time the relevant garnishee order nisi was served upon the Applicant, the funds available in the account were insufficient to satisfy the decree.
30. On the issue of extension of time, Counsel submits that the court has discretion to enlarge time under Section 79G of the Civil Procedure Act. He relies on the authority of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, in which the court stated that in considering whether to extend time, the court must evaluate factors such as the length of delay, the reasons for the delay, the chances of success of the intended appeal and the degree of prejudice to the Respondent.
31. Counsel further relies on the principles set out by the Supreme Court in Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, in which the court emphasized that extension of time is a discretionary remedy to be granted on a case by case basis, upon satisfactory explanation of the delay and consideration of whether prejudice will be occasioned to the opposing party.
32. He submits that the delay in bringing the present application was not deliberate but was occasioned by the fact that the Applicant had already filed an appeal within the prescribed period and the matter proceeded before the appellate court for several years under the presumption that leave to appeal had been properly sought and granted. Once it became apparent that the record did not reflect the grant of leave, the Applicant promptly withdrew the appeal and filed the present application.
33. Counsel urges that no prejudice will be occasioned to the 1st Respondent if the orders sought are granted because the decretal sum remains deposited in a joint interest-earning account in the names of the parties’ advocates, thereby securing the 1st Respondent’s interests, pending the determination of the appeal.
34. On the other hand, he submits that the Applicant stands to suffer greater prejudice if the orders sought are denied, as the Applicant, being a financial institution, would be compelled to satisfy the decretal sum from its own resources despite the fact that the judgment debtor’s account held insufficient funds and the Applicant was not a party to the underlying dispute.
35. Counsel therefore submits that the Applicant has satisfactorily explained the delay, demonstrated the existence of arguable grounds of appeal and shown that no prejudice will be occasioned to the Respondents if the application is allowed. He urges the court to find that the Applicant has met the threshold for the grant of leave to appeal and leave to appeal out of time and to allow the application so that the intended appeal may be heard and determined on its merits.
36. On his part, learned Counsel for the 1st Respondent submits that the present application was filed after an inordinate and unexplained delay. It is pointed out that the previous appeal was withdrawn on 8th April, 2024 while the present application was only filed on 9th December, 2024, a period of more than eight months. He argues that the Applicant has failed to provide a reasonable explanation for the delay and that the application was only filed after the 1st Respondent initiated execution proceedings. According to Counsel, such delay demonstrates indolence and an attempt to frustrate the Respondent from enjoying the fruits of a lawful judgment.
37. Learned Counsel for the 1st Respondent submits that Order 43 Rule 3 of the Civil Procedure Rules expressly requires that an application for leave to appeal be made either orally at the time the order is delivered or within fourteen days from the date of the order. According to Counsel, once the statutory period lapses, the only available recourse is to first seek enlargement of time under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules before making any other substantive prayer.
38. Counsel submits that the Applicant failed to seek enlargement of time within which to apply for leave to appeal and instead proceeded to seek leave directly, thereby rendering the application incompetent. He places reliance on the case of Machakos County v Kapiti Plains Estate Ltd & Another [2019] eKLR, where the court held that failure to seek leave to appeal within the prescribed period, or to apply for extension of time, renders such an application unmeritorious.
39. Counsel further submits that Article 159 of the Constitution cannot be invoked to cure non-compliance with mandatory procedural timelines. In that regard, he relies on the authority of Charles Wanjohi Wathuku v Githinji Ngure & Another, Civil Application No. 9 of 2016, where the court emphasized that statutory timelines are not mere technicalities that can be overlooked under Article 159.
40. Counsel for the 1st Respondent further argues that the present application is brought before the wrong forum. He submits that under Order 43 Rule 3 of the Civil Procedure Rules, leave to appeal must in the first instance be sought from the court that made the order intended to be appealed against. In the present case, that court is the subordinate court.
41. Counsel therefore submits that by approaching the High Court directly without first seeking leave before the subordinate court, the Applicant failed to follow the prescribed statutory procedure, thereby depriving the High Court of jurisdiction to entertain the application.
42. In support of that argument, reliance is placed on the decision in Tasmac Limited v Robertio Macri & 3 Others, Civil Application No. 6 of 2017, where the Court of Appeal held that where leave to appeal is required, such leave must first be obtained from the court that made the impugned order, and failure to do so renders subsequent proceedings incompetent.
43. He also relies on Diamond Trust Bank Limited v Invesco Assurance Co. Ltd & Another [2021] eKLR, where the court reiterated that where the law prescribes a specific procedure for redress, that procedure must be strictly followed.
44. Reference is also made to the Court of Appeal decision in Speaker of the National Assembly v James Njenga Karume [1992] eKLR, which emphasized the necessity of adhering to statutory procedures for dispute resolution.
45. Further reliance is placed on Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR and Nyutu Agrovet Limited v Airtel Networks Ltd [2015] eKLR, which underscore that where leave to appeal is required but has not been sought and obtained, the appellate court lacks jurisdiction to entertain the appeal or any related applications.
46. Counsel also cites Ziporah Moraa v David Okioma & Another [2020] eKLR to support the proposition that an application relating to leave to appeal must be made before the court that delivered the impugned decision and that failure to do so renders such an application incompetent.
47. In that respect, reliance is placed on the authority of Transtrade Services Limited v Sudi Salim Said & Salim Said (Suing as the Administrators Ad Litem of the Estate of Said Salim Said) [2021] eKLR, where the court held that unexplained delay in bringing an application for extension of time renders the delay inexcusable.
48. Counsel also relies on Joseph Odide Walome v David Mbadi Akello [2022] eKLR, where the court held that unexplained delay of several months in filing an application for extension of time constitutes inordinate delay and may lead to dismissal of the application.
49. In conclusion, Counsel submits that the application is incompetent for failure to seek enlargement of time within which to apply for leave to appeal, for having been brought before the wrong forum and for having been filed after an inordinate and unexplained delay. This court is therefore urged to dismiss the application with costs to the 1st Respondent.
50. Having carefully considered the application, the affidavits on record, and the rival submissions by Counsel for the parties, the Court is of the view that the issues that arise for determination in this matter may be condensed into four broad questions.
51. The first issue for determination is whether the present application is competent in light of the 1st Respondent’s contention that the Applicant ought to have sought leave to appeal in the first instance before the subordinate court which delivered the impugned ruling, and whether this Court therefore has jurisdiction to entertain the application as framed.
52. The second issue for determination is whether the Applicant has established sufficient cause to warrant the grant of leave to appeal against the ruling of the subordinate court delivered on 31st August, 2023 in Kisumu MCCC No. 28 of 2020, having regard to the eight (8) months delay from the withdrawal of the previous appeal on 8th April, 2024 to the filing of the present application on 9th December, 2024.
53. The third issue for determination is whether the Applicant has satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal, having regard to the period that has elapsed since the impugned ruling and the explanation offered for the delay.
54. The fourth and final issue for determination is whether the Applicant has made out a case for the grant of an order of stay of execution of the decree and any consequential orders arising from the judgment in Kisumu MCCC No. 28 of 2020 pending the hearing and determination of the intended appeal.
55. I will proceed to address the four issues.
56. The first issue for determination is whether the present application is competent and properly before this Court in view of the 1st Respondent’s contention that leave to appeal ought to have been sought in the first instance before the subordinate court which delivered the impugned ruling.
57. The right of appeal is not automatic in every instance. It is a creature of statute and must be exercised strictly within the framework provided by the law. Section 75 of the Civil Procedure Act, together with Order 43 of the Civil Procedure Rules, set out the orders from which appeals lie as of right and those which require leave of the court. Where an order does not fall within the category of appealable orders as of right, a party intending to appeal must first obtain leave of the court.
58. The importance of obtaining leave where it is required has been emphasized by the superior courts. In Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR, the Court of Appeal stated that:
“Where there is no automatic right of appeal stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, then the appellate court has no jurisdiction to hear and determine an appeal unless leave of the court from which the order was made is sought and obtained.”
59. This authority underscores the principle that leave to appeal is a jurisdictional prerequisite where the law requires it.
60. Similarly, the Court of Appeal in Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR reiterated that failure to obtain leave where it is required renders subsequent appellate proceedings incompetent. The Court observed that:
“Without leave of the High Court, the applicant was not entitled to give Notice of Appeal where leave to appeal is necessary by dint of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules; the procurement of leave to appeal is sine qua non to the lodging of the Notice of Appeal.”
61. The Court went on to note that without such leave, the appellate court’s jurisdiction is not properly invoked.
62. The Civil Procedure Rules further prescribe the forum in which such leave ought to be sought. Order 43 Rule 3 provides that an application for leave to appeal shall in the first instance be made to the court making the order sought to be appealed against, either orally at the time the order is made or within fourteen days of the order.
63. The courts have consistently emphasized the need to adhere to procedures laid down in statute. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal held that:
“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
64. Leave to appeal, where there is no automatic right of appeal, must be from the originating court. This principle is applied by the courts to ensure that litigants do not circumvent statutory procedures.
65. In the present case, it is not disputed that the Applicant initially filed an appeal before the High Court challenging the ruling of the subordinate court delivered on 31st August, 2023. However, during the course of those proceedings, it became apparent that the record of the trial court did not reflect whether leave to appeal had been sought or granted.
66. Faced with that uncertainty, the Applicant withdrew the appeal and has now approached this Court seeking leave to appeal and enlargement of time, without first seeking leave from the Subordinate Court which delivered.
67. The Applicant’s direct application to this Court, without having exhausted the statutory requirement to obtain leave from the Subordinate Court, contravenes the mandatory provisions of Order 43 Rule 3.
68. Based on the above authorities and the facts, the Court finds that the Applicant’s failure to seek leave from the court of first instance renders the application improperly before this Court. The principle of strict adherence to statutory procedure is central to ensuring judicial discipline and preventing forum shopping. As such, the application is incompetent. Consequently, this Honorable Court cannot grant leave to appeal under these circumstances.
69. I will now turn to the second and third issues, which I will address together.
70. The second issue for determination is whether the Applicant has demonstrated sufficient cause to justify the grant of leave to appeal out of time, having regard to the eight (8) months delay from the withdrawal of the previous appeal on 8th April, 2024 to the filing of the present application on 9th December, 2024 while the third issue is whether the Applicant has satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal, having regard to the period that has elapsed since the impugned ruling and the explanation offered for the delay.
71. It is well established in law that the grant of leave to appeal out of time is a discretionary remedy, which can only be exercised where the Applicant demonstrates a satisfactory explanation for the delay and shows that the intended appeal has a reasonable prospect of success. Delay that is inordinate or unexplained militates against the exercise of judicial discretion in favour of the Applicant.
72. In Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated:
“Extension of time being a creature of equity, one can only enjoy it if one acts equitably; he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time lapse.”
73. Similarly, in Transtrade Services Limited v Sudi Salim Said & Salim Said (Suing as the Administrators Ad Litem of the Estate of Said Salim Said) [2021] eKLR, the court held:
“Unexplained delay in bringing an application for extension of time renders the delay inordinate and inexcusable. A party who has delayed cannot expect the court to exercise discretion in their favour without providing a credible explanation.”
74. My understanding of what the Courts said in the two decisions is that unexplained or inordinate delay precludes the court from properly exercising its discretion.
75. In the present case, the Applicant filed the current application eight (8) months after withdrawing the previous appeal. No explanation has been provided for this prolonged delay.
76. The Applicant attributes the delay to a “procedural misunderstanding” and reliance on the assumption that leave to appeal had been properly sought, yet no contemporaneous steps were taken to clarify the status of the initial appeal or to move the subordinate court for leave within a reasonable time.
77. The law is clear that an Applicant must provide a satisfactory explanation for delay in order to move the court to exercise discretion in their favour. In the case of Joseph Odide Walome v David Mbadi Akello [2022] eKLR, the court emphasized:
“Unexplained delay of several months in filing an application for extension of time constitutes inordinate delay and may lead to dismissal of the application.”
78. In this instance, the Applicant has failed to provide any reasonable explanation for the eight-month delay. As a result, the Court has not been properly moved to exercise its discretion to grant leave to appeal out of time. The delay is not merely technical but substantial and unexplained, rendering the application defective and unmeritorious.
79. The Court therefore finds that, on the basis of the inordinate and unexplained delay, the Applicant has not satisfied the requirements under Section 79G of the Civil Procedure Act and relevant rules to justify an extension of time. The Applicant has also not satisfied the legal threshold for the enlargement of time within which to lodge the intended appeal,
80. Accordingly, the application for leave to appeal out of time cannot be granted, and the Court declines to exercise its discretion in favour of the Applicant.
81. The fourth issue for determination is whether the Applicant has shown that the interests of justice or absence of prejudice warrant the grant of leave to appeal out of time.
82. It is well established that the grant of leave to appeal out of time is discretionary and requires the applicant to provide a satisfactory explanation for any delay, demonstrate arguable grounds of appeal and show that the opposing party will not suffer prejudice. In Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court held:
“In considering whether to extend time, the court must evaluate the length of delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the Respondent.”
83. In the this case, the Applicant filed the current application on 9th December, 2024, over eight months after withdrawing the previous appeal on 8th April, 2024. As I have already found, the delay is inordinate and remains unexplained. We have also seen that the application was filed directly in this Court without first seeking leave from the Subordinate Court, contrary to the mandatory procedure under Order 43 Rule 3 of the Civil Procedure Rules.
84. Having already found under the previous issues that the application is incompetent, procedurally defective and filed after an inordinate and unexplained delay, the issue of prejudice or interests o
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