(Being an appeal from the Ruling and orders of Honourable Magistrate Becky Cheloti Mulemia issued in Milimani Chief Magistrate’s Case No. 2549 of 2019 delivered on 5th December 2024)
1. The appellant being aggrieved by the Ruling of the trial court delivered on 5th December 2024 in Milimani Commercial Magistrate’s court case No. 2549 of 2019 lodged the present appeal. The impugned ruling arose from the Respondent application dated 12th August 2024 in which the Respondent sought, orders that by operation of law and pursuant to Order 17 Rule 2 (5) of the Civil Procedure Rules, this suit stood dismissed as of February 2022.
2. Aggrieved by the Ruling allowing the application dated 12th August 2024 the Appellants filed a Memorandum of Appeal dated 3rd January 2025. The appeal is premised on, the grounds that the Leaned Magistrate erred in law and in fact by finding that no step had been taken by the Plaintiffs in the suit and that the suit therefore stood automatically dismissed after two years by virtue of Order 17 Rule 2 (5) of the Civil procedure Rules 2010. The Appellants further contend that the learned magistrate erred by holding that Order 17 Rule 2 (5) takes precedence over Article 47 (1) , 50 (1), and Article 159 (2) (d) of the Constitution by failing to consider the established principles governing the dismissal of suits for want of prosecution; and failing to determine whether the delay to prosecuting the suit was intentional, inordinate and inexcusable, whether it amounted to abuse of the court process, whether it posed a substantial risk to fair trial and whether dismissal would cause prejudice to the Plaintiffs.
3. The Appellants also maintain that the trial court failed to consider the explanation advanced in opposition to the application for dismissal including the financial implications associated with the loss of matrimonial home, the disruption occasioned by the COVID-19 pandemic, the difficulties experienced in obtaining mention dates owing to minimal court operations, and the absences of any demonstrated prejudice to the Defendant were the matter to proceed to hearing. They further argue that the learned magistrate erred in treating Order 17 Rule 2 (5) of the Civil Procedure Rules 2010 and the cited judicial authorities as mandating dismissal, without appreciating that the power to dismiss a suit for want of prosecution is discretionary and ought to be exercised judiciously and sparingly to avoid injustice.; The Appellants additionally contend that the court failed to appreciate that each case must be determined on its own peculiar facts and that, where possible, courts should strive to sustain rather than prematurely terminate proceedings.
4. Lastly, they assert that the Respondent filed its Statement of Defence on 30th November 2023, approximately five years and four months after entering appearance, contrary to Order 7 Rule 1 of the Civil Procedure Rules, 2010, which requires a defendant to file a defence within fourteen days after entry of appearance.
5. The Appellants seeks orders that the appeal be allowed; that the impugned ruling be set aside; that the suit before the lower court be reinstated and fixed for hearing within 30 days from the date of this court’s Ruling; and that the costs of the appeal be awarded to the Appellants.
6. The Respondent filed a Notice of Preliminary Objection dated 7th November 2025 seeking the striking out or dismissal of the the appeal with costs. The objection is premised on the grounds that this Court lacks jurisdiction to hear and determine the appeal; that under Section 75 of the Civil Procedure Act as read together with Order 43 Rule 1 of the Civil Procedure Rules 2010, the Appellants have no automatic right of appeal against the Ruling delivered by Hon. Becky Cheloti on 5th December 2024; and that leave to appeal was neither sought nor obtained as required under Section 75 of the Civil procedure Act as read with Order 43 Rule 2 of the Civil Procedure Rules 2010.
7. Pursuant to the directions of the court, both the appeal and objection were canvassed by way of written submissions. The Appellants’ submissions are dated 12th January 2026 while the Respondent’s submissions are dated 1st April 2026.
Appellants’ submissions
8. The Appellants’ counsel commenced his submissions by setting out the background to the appeal and the circumstances that culminated in the impugned ruling. Counsel submitted that the dispute originated when the Plaintiffs filed a Plaint, Verifying Affidavit, List of Witnesses, Witness Statement, List and Bundle of Documents, together with a Notice of Motion dated 11th April 2019 seeking a temporary injunction. These documents were filed on 12th April 2019 and served upon the Respondent.
9. Thereafter, the Respondent filed a Replying Affidavit dated 2nd May 2019 on 3rd May 2019, a Further Affidavit dated 13th May 2019 on 14th May 2019 and written submissions dated 4th June 2019 in opposition to the application. The Appellants subsequently filed a Supplementary Affidavit and written submissions on 7th June 2019, while the Respondent filed a further Supplementary Affidavit dated 21st June 2019.
10. Counsel submitted that, upon considering the pleadings, Hon. D. W. Mburu (SPM) delivered a ruling on 27th September 2019 dismissing the Appellants’ application for an injunction. Following the dismissal of the application, the Respondent allegedly proceeded to exercised its statutory power of sale over House No. 91 Akila Estate, Madaraka on L.R. No. 209/15501. Counsel contended that the Respondent did so without undertaking a current valuation, disclosing the valuation report or auction records, and sold the property at a gross undervalue thereby depriving the 1st and 2nd Appellants of their matrimonial home in violation of Article 40(1) of the Constitution.
11. Counsel further submitted that the Respondent levied illegal, unconscionable and oppressive interest rates contrary to the Consumer Protection Act, Cap. 501 and the Central Bank of Kenya Prudential Guidelines on Consumer Protection (CBK/PG/22), thereby denying the Appellants the opportunity to redeem the property or refinance the facility. Following the sale of the property, the Appellants instructed new advocates through a Notice of Change of Advocates dated 22nd August 2023, successfully obtained leave to amend their Plaint and subsequently filed an Amended Plaint dated 8th September 2023.
12. Counsel pointed out that, despite having entering appearance in 2019, the Respondent only filed its Statement of Defence on 30th November 2023, more than 5 years and 4 months later, contrary to Order 7 Rule 1 of the Civil Procedure Rules. Thereafter, that on 12th August 2024, the Respondent filed an application seeking a declaration that the suit had automatically stood dismissed by operation of Order 17 Rule 2(5) of the Civil Procedure Rules. The application was allowed by Hon. Becky Cheloti Mulemia on 5th December 2024, prompting the Appellants to file a Notice of Appeal dated 18th December 2024 and a Memorandum of Appeal dated 3rd January 2025. Counsel stated that the Record of Appeal was filed on 28th April 2025, directions on submissions were issued on 6th November 2025 and the written submissions were consequently filed in support of the appeal.
13. On whether the appeal was merited, counsel submitted that the learned trial magistrate erred in allowing the Respondent's application under Order 17 Rule 2(5) of the Civil Procedure Rules. He argued that although the Respondent sought dismissal of the suit for want of prosecution, it had itself delayed for more than 5 years before filing its Statement of Defence on 30th November 2023 and therefore could not, therefore, equitably rely on the Appellants' alleged delay.
14. Counsel submitted that the Respondent's conduct offended Order 7 Rule 1 of the Civil Procedure Rules, yet the trial court overlooked this apparent default while penalizing the Appellants. He further argued that the trial court miscalculated the statutory period contemplated under Order 17 Rule 2(5). According to counsel, the Record of Appeal showed that the Appellants filed a Further List and Bundle of Documents on 6th December 2023, whereas the Respondent's application for dismissal was filed on 12th August 2024. Consequently, less than 1year, rather than the 2 years contemplated under Order 17 Rule 2(5), had elapsed. Counsel therefore maintained that the statutory threshold for automatic dismissal had not arisen and that the trial court erred in law by holding otherwise.
15. In support of the foregoing argument, counsel relied on Ivita v Kyumbu [1975] KEHC 4 (KLR) and ET Monks & Co. Ltd. Counsel submitted that these authorities demonstrated that a party who has itself been guilty of inordinate delay is less deserving of the equitable relief sought. He therefore argued that the trial magistrate erred in granting the application for dismissal despite the Respondent's own dilatory conduct.
16. Addressing Grounds 4, 5 and 7 of the Memorandum of Appeal, counsel submitted that the subject matter of the dispute was the matrimonial home of the 1st and 2nd Appellants and that the dismissal of the suit occasioned irreparable harm by denying them an opportunity to challenge the sale of their property. Counsel further argued that the trial court failed to appreciate the effect of COVID-19 pandemic, which significantly disrupted court operations for approximately one and a half to two years, thereby making it difficult for litigants to obtain mention dates and prosecute matters. According to counsel, these circumstances constituted a reasonable explanation for any delay, yet. He submitted that the Respondent did not challenge this explanation and that the trial court failed to consider it before dismissing the suit. Counsel therefore contended that the dismissal occasioned substantial injustice contrary to the Constitution and the Civil Procedure Act.
17. Counsel further submitted that the trial magistrate failed to apply the settled legal principles governing dismissal for want of prosecution as set out in Ivita v Kyumbu [1975] KEHC 4 (KLR). He argued that the Respondent failed to demonstrated any prejudice it would suffer if the suit proceeded to hearing and therefore failed to satisfy the applicable legal test.
18. Counsel also relied on Habib Bank AG Zurich v Eugene Marion Esposito eKLR, submitting that the dispute raised serious questions regarding the alleged sale of the Appellants' matrimonial home at a throwaway price without a current valuation report, contrary to Section 97 of the Land Act. He argued that these issues merited determination through a full trial rather than summary termination on procedural grounds
19. Further reliance was placed on Raila Odinga & 5 Others v IEBC & 3 Others in support of the proposition that courts should prioritise substantive justice over procedural technicalities. Counsel therefore urged the appellate court to reinstate the suit On costs, counsel relied on Section 27 of the Civil Procedure Act, the case of Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Ltd, and also cited Justice (Retired) Richard Kuloba's Judicial Hints on Civil Procedure (2nd Edition) at pages 99 and 101, to submit that the appeal should be allowed with costs to the Appellants, to be borne by the Respondent.
Respondent’s submissions
20. The Respondent’s counsel commenced his submissions by introducing the matter and proceeded to address two issues, namely whether the preliminary objection was meritorious and whether the appeal is merited.
21. Counsel first addressed the preliminary objection and submitted that it was merited. He argued that the appeal was incompetent because it presumed the existence of a right of appeal where none existed. Relying on Section 75(1) of the Civil Procedure Act, read together with Order 43 Rule 1 of the Civil Procedure Rules, counsel submitted that only specified orders are appealable as of right, while all other orders require leave of the court that made the impugned decision.
22. According to counsel, the impugned ruling did not fall within the category of orders appealable as of right. Consequently, the Appellants were required to obtain leave before lodging the appeal. Counsel further relied on the case of Serphen Nyasani Menge v Risph Onsase [2018] KEELC 654, in which the court held that leave under Order 43 Rule 3 must be sought either orally at the time the order is made or within 14 days thereafter, and that the requirement is mandatory. He submitted that failure to seek and obtain leave is fatal and renders any appeal incompetent.
23. Counsel further submitted that, because the admissibility of the appeal concerned the jurisdiction of the appellate court, the issue had to be determined before any consideration of the merits of the appeal. In this regard, he relied on Edith Wairimu Njoroge v Brooks Holdings Co. Ltd [2018] eKLR, and the decision in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] 1 KLR 1. Counsel submitted that a perusal of the Record of Appeal revealed no order granting leave to appeal and that it was undisputed that the impugned ruling was not appealable as of right. Consequently, he urged the court to uphold the preliminary objection and strike out the appeal for want of jurisdiction.
24. Without prejudice to the preliminary objection, Counsel addressed the merits of the appeal and submitted that it was unmeritorious because the suit had already stood dismissed by operation of law. Counsel argued that, in interpreting statutes, the primary obligation of the court is to ascertain and give effect to the intention of Parliament as expressed in the plain and unambiguous language of the legislation. In support of this proposition, he relies on County Government of Kiambu & another v Senate & others [2017] KEHC 8375 (KLR) and the provisions of Order 17 Rule 2(5) of the Civil Procedure Rules.
25. To reinforce this interpretation, counsel relied on Kihara v Thumbi (Environment & Land Case No. 18 of 2018) [2022] KEELC 3333 (KLR), where the court held that where no action has been taken in a suit for a period of two years, the suit automatically stands dismissed by operation of law. Counsel emphasised that once the suit has been dismissed by operation of law, the subordinate court becomes functus officio, rendering any subsequent proceedings relating to the suit legally untenable.
26. Counsel further submitted that, a computation of time, revealed that, following the ruling delivered on 27th September 2019, the Appellants took almost 4 years before moving the court to amend their Plaint. According to counsel, it was this prolonged period of inactivity that prompted the Respondent to seek confirmation that the suit had already stood dismissed by operation of law. The Respondent’s position was that, by the time the amendment was filed, the statutory 2 year period prescribed under Order 17 Rule 2(5) had long lapsed and the suit had therefore ceased to exist. Consequently, any procedural steps taken thereafter, including the amendment of the Plaint, were of no legal consequence because there was no subsisting suit upon which such actions could be founded.
27. Counsel maintained that this was a pure a point of law capable of being raised at any stage of the proceedings. He further pointed out that the Appellants had not sought reinstatement of the suit under Order 17 Rule 2(6) so as to explain or justify the delay. Instead, they proceeded directly by way with the appeal. In this regard, counsel relied on Harleys Ltd v Metro Pharmaceuticals Ltd [2024] KEHC 802 (KLR), where the court held that Order 17 Rule 2(5) is peremptory, requires no formal action before taking effect and cannot be circumvented through judicial interpretation.
28. Counsel therefore submitted that although the Appellants had advanced explanations for the delay, such explanations could only be considered within an application for reinstatement of the suit. He consequently urged the court to dismiss the appeal with costs to the Respondent.
Analysis and Determination
29. This being a first appeal, this court is under a duty to re-evaluate reassess and reconsider the material that was before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The duty of the first appellate Court was settled in the case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123.
30. I have carefully considered the Record of Appeal, the rival submissions and the authorities cited. In my view, the following issues arise for determination:
i. Whether the Notice of Preliminary Objection dated 7th November 2025 is merited.
ii. Whether the learned trial magistrate erred in law and in fact in allowing the Respondent’s application dated 12th August 2024.
31. It is prudent to first determine the Respondent's Notice of Preliminary Objection dated 7th November 2025 because it challenges the jurisdiction of this Court to entertain the appeal. The Respondent contends that the impugned ruling delivered on 5th December 2024 arose from proceedings under Order 17 of the Civil Procedure Rules and was therefore not appealable as of right under Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules. According to the Respondent, the Appellants neither sought nor obtained leave to appeal and, consequently, the present appeal is incompetent.
32. The law regarding preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that:
"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit."
33. The objection before the Court questions the Court's jurisdiction to hear and determine the appeal. It is therefore a proper preliminary objection because it raises a pure point of law capable of disposing of the entire appeal without the necessity of interrogating contested facts.
34. The central issue is whether the impugned decision was appealable as of right or whether leave to appeal was a mandatory prerequisite. It is trite that jurisdiction is everything and without it a court has no authority make one more step in the matter. As was authoritatively stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1.
35. Section 75(1) of the Civil Procedure Act identifies the orders from which an appeal lies, it states;
(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—
36. Further, Section 75(1)(h) provides that an appeal shall lie as of right from;
“any order made under rules from which an appeal is expressly allowed by rules.”
37. The foregoing provision is supplemented by Order 43 Rule 1 of the Civil Procedure Rules which specifically enumerates the orders from which appeals lie as of right. Conversely, Order 43 Rule 1 (2), which provides,
“An appeal shall lie with the leave of the court from any other order made under these Rules.”
38. A reading of Order 43 Rule 1 leaves no doubt that orders made under Order 17 of the Civil Procedure Rules are not among those listed as appealable as of right. The legal consequence is that any appeal arising from an order made under Order 17 must be preceded by leave of the court.
39. This position has consistently received judicial affirmation in Mucheri [2024] KEHC 3222 (KLR) and Serphen Nyasani Menge v Risph Onsase [2018] eKLR, where the court held; that where leave to appeal is required, before an appeal can be instituted, such leave must be sought either orally at the time the order is made or within fourteen days thereafter, and failure to obtain such leave renders the appeal incompetent.
40. A similar position was given in National Bank of Kenya v Maurice Onyango Okongo [2018] eKLR where the court, while striking out an Appeal of similar nature, stated as follows;
“………Respondent holds the view that this appeal is incompetent on account of appellant's failure to seek leave contemplated under the provisions of Section 75 and 76 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. Appellant did not submit on the issue of leave to appeal. I have carefully examined Section 75 and 76 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules and I find no provision that confers upon the appellant the “right of appeal” under Order 17 rule 2(3) of the Civil Procedure Rules. The record does not show that any leave to appeal was sought or obtained after the impugned ruling and before filing of this appeal. In my view, it is that leave which confers this court with the jurisdiction to hear the appeal. Jurisdictional issues are not matters that fall in the category of procedural technicalities. They go to the root of the matter for without jurisdiction, this court or any other court would do no one more thing than down its tools… Appellant has no right to appeal except with leave. Only leave, when obtained, would confer jurisdiction to this court to hear and determine the merits of this appeal. No leave was either sought or granted. The appeal is therefore a nonstarter in limine.”
41. I am persuaded by the reasoning in the foregoing decisions. The requirement for leave is not a mere procedural formality. Rather, it is a substantive statutory condition precedent to the exercise of the appellate jurisdiction of the Court. Where the law requires leave and no leave is obtained, the resulting appeal is incompetent ab initio.
42. I have carefully perused the Record of Appeal. There is no indication that the Appellants sought leave orally upon delivery of the ruling on 5th December 2024. Equally, there is no subsequent application seeking leave to appeal, nor is there any order granting such leave. Instead, the Appellants proceeded to file a Notice of Appeal dated 18th December 2024 and subsequently a Memorandum of Appeal dated 3rd January 2025 without first obtaining leave of the court.
43. In the absence of leave, the appeal was instituted contrary to the mandatory provisions of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. The omission goes to the root of the appeal and is not a procedural irregularity capable of cure. In the circumstance, I am compelled to conclude that this Court lacks jurisdiction to entertain the appeal.
44. Having reached that conclusion, it would be inappropriate for this Court to delve into the merits of the substantive grounds of appeal. Once a court determines that it lacks jurisdiction, its mandate ends there. As stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the court must immediately "down its tools."
45. I therefore make the following orders;
a. The Notice of Preliminary Objection dated 7th November 2025 is therefore merited and is hereby upheld.
b. Consequently, the appeal is hereby struck out with costs to the Respondent.
Orders accordingly.
1. The appellant being aggrieved by the Ruling of the trial court delivered on 5th December 2024 in Milimani Commercial Magistrate’s court case No. 2549 of 2019 lodged the present appeal. The impugned ruling arose from the Respondent application dated 12th August 2024 in which the Respondent sought, orders that by operation of law and pursuant to Order 17 Rule 2 (5) of the Civil Procedure Rules, this suit stood dismissed as of February 2022.
2. Aggrieved by the Ruling allowing the application dated 12th August 2024 the Appellants filed a Memorandum of Appeal dated 3rd January 2025. The appeal is premised on, the grounds that the Leaned Magistrate erred in law and in fact by finding that no step had been taken by the Plaintiffs in the suit and that the suit therefore stood automatically dismissed after two years by virtue of Order 17 Rule 2 (5) of the Civil procedure Rules 2010. The Appellants further contend that the learned magistrate erred by holding that Order 17 Rule 2 (5) takes precedence over Article 47 (1) , 50 (1), and Article 159 (2) (d) of the Constitution by failing to consider the established principles governing the dismissal of suits for want of prosecution; and failing to determine whether the delay to prosecuting the suit was intentional, inordinate and inexcusable, whether it amounted to abuse of the court process, whether it posed a substantial risk to fair trial and whether dismissal would cause prejudice to the Plaintiffs.
3. The Appellants also maintain that the trial court failed to consider the explanation advanced in opposition to the application for dismissal including the financial implications associated with the loss of matrimonial home, the disruption occasioned by the COVID-19 pandemic, the difficulties experienced in obtaining mention dates owing to minimal court operations, and the absences of any demonstrated prejudice to the Defendant were the matter to proceed to hearing. They further argue that the learned magistrate erred in treating Order 17 Rule 2 (5) of the Civil Procedure Rules 2010 and the cited judicial authorities as mandating dismissal, without appreciating that the power to dismiss a suit for want of prosecution is discretionary and ought to be exercised judiciously and sparingly to avoid injustice.; The Appellants additionally contend that the court failed to appreciate that each case must be determined on its own peculiar facts and that, where possible, courts should strive to sustain rather than prematurely terminate proceedings.
4. Lastly, they assert that the Respondent filed its Statement of Defence on 30th November 2023, approximately five years and four months after entering appearance, contrary to Order 7 Rule 1 of the Civil Procedure Rules, 2010, which requires a defendant to file a defence within fourteen days after entry of appearance.
5. The Appellants seeks orders that the appeal be allowed; that the impugned ruling be set aside; that the suit before the lower court be reinstated and fixed for hearing within 30 days from the date of this court’s Ruling; and that the costs of the appeal be awarded to the Appellants.
6. The Respondent filed a Notice of Preliminary Objection dated 7th November 2025 seeking the striking out or dismissal of the the appeal with costs. The objection is premised on the grounds that this Court lacks jurisdiction to hear and determine the appeal; that under Section 75 of the Civil Procedure Act as read together with Order 43 Rule 1 of the Civil Procedure Rules 2010, the Appellants have no automatic right of appeal against the Ruling delivered by Hon. Becky Cheloti on 5th December 2024; and that leave to appeal was neither sought nor obtained as required under Section 75 of the Civil procedure Act as read with Order 43 Rule 2 of the Civil Procedure Rules 2010.
7. Pursuant to the directions of the court, both the appeal and objection were canvassed by way of written submissions. The Appellants’ submissions are dated 12th January 2026 while the Respondent’s submissions are dated 1st April 2026.
Appellants’ submissions
8. The Appellants’ counsel commenced his submissions by setting out the background to the appeal and the circumstances that culminated in the impugned ruling. Counsel submitted that the dispute originated when the Plaintiffs filed a Plaint, Verifying Affidavit, List of Witnesses, Witness Statement, List and Bundle of Documents, together with a Notice of Motion dated 11th April 2019 seeking a temporary injunction. These documents were filed on 12th April 2019 and served upon the Respondent.
9. Thereafter, the Respondent filed a Replying Affidavit dated 2nd May 2019 on 3rd May 2019, a Further Affidavit dated 13th May 2019 on 14th May 2019 and written submissions dated 4th June 2019 in opposition to the application. The Appellants subsequently filed a Supplementary Affidavit and written submissions on 7th June 2019, while the Respondent filed a further Supplementary Affidavit dated 21st June 2019.
10. Counsel submitted that, upon considering the pleadings, Hon. D. W. Mburu (SPM) delivered a ruling on 27th September 2019 dismissing the Appellants’ application for an injunction. Following the dismissal of the application, the Respondent allegedly proceeded to exercised its statutory power of sale over House No. 91 Akila Estate, Madaraka on L.R. No. 209/15501. Counsel contended that the Respondent did so without undertaking a current valuation, disclosing the valuation report or auction records, and sold the property at a gross undervalue thereby depriving the 1st and 2nd Appellants of their matrimonial home in violation of Article 40(1) of the Constitution.
11. Counsel further submitted that the Respondent levied illegal, unconscionable and oppressive interest rates contrary to the Consumer Protection Act, Cap. 501 and the Central Bank of Kenya Prudential Guidelines on Consumer Protection (CBK/PG/22), thereby denying the Appellants the opportunity to redeem the property or refinance the facility. Following the sale of the property, the Appellants instructed new advocates through a Notice of Change of Advocates dated 22nd August 2023, successfully obtained leave to amend their Plaint and subsequently filed an Amended Plaint dated 8th September 2023.
12. Counsel pointed out that, despite having entering appearance in 2019, the Respondent only filed its Statement of Defence on 30th November 2023, more than 5 years and 4 months later, contrary to Order 7 Rule 1 of the Civil Procedure Rules. Thereafter, that on 12th August 2024, the Respondent filed an application seeking a declaration that the suit had automatically stood dismissed by operation of Order 17 Rule 2(5) of the Civil Procedure Rules. The application was allowed by Hon. Becky Cheloti Mulemia on 5th December 2024, prompting the Appellants to file a Notice of Appeal dated 18th December 2024 and a Memorandum of Appeal dated 3rd January 2025. Counsel stated that the Record of Appeal was filed on 28th April 2025, directions on submissions were issued on 6th November 2025 and the written submissions were consequently filed in support of the appeal.
13. On whether the appeal was merited, counsel submitted that the learned trial magistrate erred in allowing the Respondent's application under Order 17 Rule 2(5) of the Civil Procedure Rules. He argued that although the Respondent sought dismissal of the suit for want of prosecution, it had itself delayed for more than 5 years before filing its Statement of Defence on 30th November 2023 and therefore could not, therefore, equitably rely on the Appellants' alleged delay.
14. Counsel submitted that the Respondent's conduct offended Order 7 Rule 1 of the Civil Procedure Rules, yet the trial court overlooked this apparent default while penalizing the Appellants. He further argued that the trial court miscalculated the statutory period contemplated under Order 17 Rule 2(5). According to counsel, the Record of Appeal showed that the Appellants filed a Further List and Bundle of Documents on 6th December 2023, whereas the Respondent's application for dismissal was filed on 12th August 2024. Consequently, less than 1year, rather than the 2 years contemplated under Order 17 Rule 2(5), had elapsed. Counsel therefore maintained that the statutory threshold for automatic dismissal had not arisen and that the trial court erred in law by holding otherwise.
15. In support of the foregoing argument, counsel relied on Ivita v Kyumbu [1975] KEHC 4 (KLR) and ET Monks & Co. Ltd. Counsel submitted that these authorities demonstrated that a party who has itself been guilty of inordinate delay is less deserving of the equitable relief sought. He therefore argued that the trial magistrate erred in granting the application for dismissal despite the Respondent's own dilatory conduct.
16. Addressing Grounds 4, 5 and 7 of the Memorandum of Appeal, counsel submitted that the subject matter of the dispute was the matrimonial home of the 1st and 2nd Appellants and that the dismissal of the suit occasioned irreparable harm by denying them an opportunity to challenge the sale of their property. Counsel further argued that the trial court failed to appreciate the effect of COVID-19 pandemic, which significantly disrupted court operations for approximately one and a half to two years, thereby making it difficult for litigants to obtain mention dates and prosecute matters. According to counsel, these circumstances constituted a reasonable explanation for any delay, yet. He submitted that the Respondent did not challenge this explanation and that the trial court failed to consider it before dismissing the suit. Counsel therefore contended that the dismissal occasioned substantial injustice contrary to the Constitution and the Civil Procedure Act.
17. Counsel further submitted that the trial magistrate failed to apply the settled legal principles governing dismissal for want of prosecution as set out in Ivita v Kyumbu [1975] KEHC 4 (KLR). He argued that the Respondent failed to demonstrated any prejudice it would suffer if the suit proceeded to hearing and therefore failed to satisfy the applicable legal test.
18. Counsel also relied on Habib Bank AG Zurich v Eugene Marion Esposito eKLR, submitting that the dispute raised serious questions regarding the alleged sale of the Appellants' matrimonial home at a throwaway price without a current valuation report, contrary to Section 97 of the Land Act. He argued that these issues merited determination through a full trial rather than summary termination on procedural grounds
19. Further reliance was placed on Raila Odinga & 5 Others v IEBC & 3 Others in support of the proposition that courts should prioritise substantive justice over procedural technicalities. Counsel therefore urged the appellate court to reinstate the suit On costs, counsel relied on Section 27 of the Civil Procedure Act, the case of Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Ltd, and also cited Justice (Retired) Richard Kuloba's Judicial Hints on Civil Procedure (2nd Edition) at pages 99 and 101, to submit that the appeal should be allowed with costs to the Appellants, to be borne by the Respondent.
Respondent’s submissions
20. The Respondent’s counsel commenced his submissions by introducing the matter and proceeded to address two issues, namely whether the preliminary objection was meritorious and whether the appeal is merited.
21. Counsel first addressed the preliminary objection and submitted that it was merited. He argued that the appeal was incompetent because it presumed the existence of a right of appeal where none existed. Relying on Section 75(1) of the Civil Procedure Act, read together with Order 43 Rule 1 of the Civil Procedure Rules, counsel submitted that only specified orders are appealable as of right, while all other orders require leave of the court that made the impugned decision.
22. According to counsel, the impugned ruling did not fall within the category of orders appealable as of right. Consequently, the Appellants were required to obtain leave before lodging the appeal. Counsel further relied on the case of Serphen Nyasani Menge v Risph Onsase [2018] KEELC 654, in which the court held that leave under Order 43 Rule 3 must be sought either orally at the time the order is made or within 14 days thereafter, and that the requirement is mandatory. He submitted that failure to seek and obtain leave is fatal and renders any appeal incompetent.
23. Counsel further submitted that, because the admissibility of the appeal concerned the jurisdiction of the appellate court, the issue had to be determined before any consideration of the merits of the appeal. In this regard, he relied on Edith Wairimu Njoroge v Brooks Holdings Co. Ltd [2018] eKLR, and the decision in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] 1 KLR 1. Counsel submitted that a perusal of the Record of Appeal revealed no order granting leave to appeal and that it was undisputed that the impugned ruling was not appealable as of right. Consequently, he urged the court to uphold the preliminary objection and strike out the appeal for want of jurisdiction.
24. Without prejudice to the preliminary objection, Counsel addressed the merits of the appeal and submitted that it was unmeritorious because the suit had already stood dismissed by operation of law. Counsel argued that, in interpreting statutes, the primary obligation of the court is to ascertain and give effect to the intention of Parliament as expressed in the plain and unambiguous language of the legislation. In support of this proposition, he relies on County Government of Kiambu & another v Senate & others [2017] KEHC 8375 (KLR) and the provisions of Order 17 Rule 2(5) of the Civil Procedure Rules.
25. To reinforce this interpretation, counsel relied on Kihara v Thumbi (Environment & Land Case No. 18 of 2018) [2022] KEELC 3333 (KLR), where the court held that where no action has been taken in a suit for a period of two years, the suit automatically stands dismissed by operation of law. Counsel emphasised that once the suit has been dismissed by operation of law, the subordinate court becomes functus officio, rendering any subsequent proceedings relating to the suit legally untenable.
26. Counsel further submitted that, a computation of time, revealed that, following the ruling delivered on 27th September 2019, the Appellants took almost 4 years before moving the court to amend their Plaint. According to counsel, it was this prolonged period of inactivity that prompted the Respondent to seek confirmation that the suit had already stood dismissed by operation of law. The Respondent’s position was that, by the time the amendment was filed, the statutory 2 year period prescribed under Order 17 Rule 2(5) had long lapsed and the suit had therefore ceased to exist. Consequently, any procedural steps taken thereafter, including the amendment of the Plaint, were of no legal consequence because there was no subsisting suit upon which such actions could be founded.
27. Counsel maintained that this was a pure a point of law capable of being raised at any stage of the proceedings. He further pointed out that the Appellants had not sought reinstatement of the suit under Order 17 Rule 2(6) so as to explain or justify the delay. Instead, they proceeded directly by way with the appeal. In this regard, counsel relied on Harleys Ltd v Metro Pharmaceuticals Ltd [2024] KEHC 802 (KLR), where the court held that Order 17 Rule 2(5) is peremptory, requires no formal action before taking effect and cannot be circumvented through judicial interpretation.
28. Counsel therefore submitted that although the Appellants had advanced explanations for the delay, such explanations could only be considered within an application for reinstatement of the suit. He consequently urged the court to dismiss the appeal with costs to the Respondent.
Analysis and Determination
29. This being a first appeal, this court is under a duty to re-evaluate reassess and reconsider the material that was before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The duty of the first appellate Court was settled in the case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123.
30. I have carefully considered the Record of Appeal, the rival submissions and the authorities cited. In my view, the following issues arise for determination:
i. Whether the Notice of Preliminary Objection dated 7th November 2025 is merited.
ii. Whether the learned trial magistrate erred in law and in fact in allowing the Respondent’s application dated 12th August 2024.
31. It is prudent to first determine the Respondent's Notice of Preliminary Objection dated 7th November 2025 because it challenges the jurisdiction of this Court to entertain the appeal. The Respondent contends that the impugned ruling delivered on 5th December 2024 arose from proceedings under Order 17 of the Civil Procedure Rules and was therefore not appealable as of right under Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules. According to the Respondent, the Appellants neither sought nor obtained leave to appeal and, consequently, the present appeal is incompetent.
32. The law regarding preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that:
"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit."
33. The objection before the Court questions the Court's jurisdiction to hear and determine the appeal. It is therefore a proper preliminary objection because it raises a pure point of law capable of disposing of the entire appeal without the necessity of interrogating contested facts.
34. The central issue is whether the impugned decision was appealable as of right or whether leave to appeal was a mandatory prerequisite. It is trite that jurisdiction is everything and without it a court has no authority make one more step in the matter. As was authoritatively stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1.
35. Section 75(1) of the Civil Procedure Act identifies the orders from which an appeal lies, it states;
(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—
36. Further, Section 75(1)(h) provides that an appeal shall lie as of right from;
“any order made under rules from which an appeal is expressly allowed by rules.”
37. The foregoing provision is supplemented by Order 43 Rule 1 of the Civil Procedure Rules which specifically enumerates the orders from which appeals lie as of right. Conversely, Order 43 Rule 1 (2), which provides,
“An appeal shall lie with the leave of the court from any other order made under these Rules.”
38. A reading of Order 43 Rule 1 leaves no doubt that orders made under Order 17 of the Civil Procedure Rules are not among those listed as appealable as of right. The legal consequence is that any appeal arising from an order made under Order 17 must be preceded by leave of the court.
39. This position has consistently received judicial affirmation in Mucheri [2024] KEHC 3222 (KLR) and Serphen Nyasani Menge v Risph Onsase [2018] eKLR, where the court held; that where leave to appeal is required, before an appeal can be instituted, such leave must be sought either orally at the time the order is made or within fourteen days thereafter, and failure to obtain such leave renders the appeal incompetent.
40. A similar position was given in National Bank of Kenya v Maurice Onyango Okongo [2018] eKLR where the court, while striking out an Appeal of similar nature, stated as follows;
“………Respondent holds the view that this appeal is incompetent on account of appellant's failure to seek leave contemplated under the provisions of Section 75 and 76 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. Appellant did not submit on the issue of leave to appeal. I have carefully examined Section 75 and 76 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules and I find no provision that confers upon the appellant the “right of appeal” under Order 17 rule 2(3) of the Civil Procedure Rules. The record does not show that any leave to appeal was sought or obtained after the impugned ruling and before filing of this appeal. In my view, it is that leave which confers this court with the jurisdiction to hear the appeal. Jurisdictional issues are not matters that fall in the category of procedural technicalities. They go to the root of the matter for without jurisdiction, this court or any other court would do no one more thing than down its tools… Appellant has no right to appeal except with leave. Only leave, when obtained, would confer jurisdiction to this court to hear and determine the merits of this appeal. No leave was either sought or granted. The appeal is therefore a nonstarter in limine.”
41. I am persuaded by the reasoning in the foregoing decisions. The requirement for leave is not a mere procedural formality. Rather, it is a substantive statutory condition precedent to the exercise of the appellate jurisdiction of the Court. Where the law requires leave and no leave is obtained, the resulting appeal is incompetent ab initio.
42. I have carefully perused the Record of Appeal. There is no indication that the Appellants sought leave orally upon delivery of the ruling on 5th December 2024. Equally, there is no subsequent application seeking leave to appeal, nor is there any order granting such leave. Instead, the Appellants proceeded to file a Notice of Appeal dated 18th December 2024 and subsequently a Memorandum of Appeal dated 3rd January 2025 without first obtaining leave of the court.
43. In the absence of leave, the appeal was instituted contrary to the mandatory provisions of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. The omission goes to the root of the appeal and is not a procedural irregularity capable of cure. In the circumstance, I am compelled to conclude that this Court lacks jurisdiction to entertain the appeal.
44. Having reached that conclusion, it would be inappropriate for this Court to delve into the merits of the substantive grounds of appeal. Once a court determines that it lacks jurisdiction, its mandate ends there. As stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the court must immediately "down its tools."
45. I therefore make the following orders;
a. The Notice of Preliminary Objection dated 7th November 2025 is therefore merited and is hereby upheld.
b. Consequently, the appeal is hereby struck out with costs to the Respondent.
Orders accordingly.