REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. E070 OF 2025
FRANCIS MUYA ………………………..………….. APPLICANT
-VERSUS –
RODA KANINI MWEMA & HELLEN MWENDE MUMO
Suing as the administrators of the estate of the late
FLORA KALUNGU (Deceased)…………………..RESPONDENTS
RULING
The ruling relates to the application dated 10th September 2025 which was filed under certificate of urgency and seeking orders that the application be certified as urgent and service be dispensed with. That a temporary order of stay of execution of the Judgment, decree and warrants of Arrests in execution or any further proceedings in execution against the applicant in the lower Court be issued. That pending the hearing and determination of the appeal of execution of Judgment and decree of the lower Court against the applicant.
That cost of the application be in the appeal. The court certified the application as urgent and granted prayer number 2 in the interim pending inter parties hearing of the application.
The application was based on the following grounds:
i) That, the applicant was adjudged as liable for the accident that occasioned Injures to the respondents' deceased kinsman, following a motor vehicle traffic accident.
ii) That, the computed quantification of damages was assessed at Ksh.1, 380, 500/= as at the time of judgment, on 16.9.2022
iii) That, the motor vehicle, which occasioned the accident was insured by Blue Shield Insurance Company Ltd, which, as at the time of delivery of the judgment had been adjudged bankrupt and placed under statutory management and later under liquidation or receivership.
iv) That, then later, in 2024, the respondents, the decree-holders, issued a notice to show cause for the sum of Ksh,1, 880, 715/=, which sum, includes, interests and party and party costs.
v) That, the applicant filed an affidavit to show cause, where, the applicant contended that, pursuant to S. 179 (1) of The Insurance Act, a state corporation was established under National Treasury Economic Planning Department, that is Policyholders Compensation Fund (PCF) and so, the applicant was not liable for personal or property execution.
vi) That, further to the establishment of the Policyholders Compensation Fund (PCF), a public notice was issued by the fund, calling for all policyholders and victims of accidents of vehicles insured by the impugned insurance company in question to lodge their claims for processing.
vii) That, the applicant contended, and it was not disputed that, a claim for the respondent was lodged, a claim number was allocated, an account opened for the respondents into which the funds due to the respondents would be wired directly, and more so, the claim was pending for payment.
viii) That in addition to the afore stated matters, the applicant's position was that, given the nature of the claim, and understandings the need to examine, scrutinize the claims and cushioning against fraud, it was expected that, the fund, would take some time to do due diligence, verify and sort out the genuine claims and the fictitious ones, and once done, pay the verified ones.
ix) That, the applicant contended in the lower court that, this claim was just one among the many others undergoing the process of verification, and this fact was not disputed at all.
x) That, there was a certain level of impatience demonstrated by the respondents in the lower court, and the lower court seems to have brought into the same level of impatience, and overlooked the statutory protection given to the applicant at the moment.
xi) That, finally, parties were directed to render submissions, which was done, and at the end of the day, the lower court failed to examine the implications of S. 179 (1) The Insurance Act, and the establishment of the fund, whose primary objective (purpose) as per the public notice was "It provide compensation to claimants of the insurer that has been put under statutory management or whose license has been cancelled and for the secondary purpose or increasing [he general public confidence in the insurance sector."
xii) That, over and above the above, the applicant's contention was that, under S. 179(1) The Insurance Act, was protected or cushioned against execution, which states:
"The Cabinet Secretary shall, for the protection of_ policyholders, establish a Policyholders' Compensation Fund, in his section referred to as "the Fund” to provide compensation to the claimant of insurer placed under a manner appointed under Section 67C 2 or whose license has been cancelled under the Act."
xiii) That, henceforth, as per the statute, the applicant, as a policyholder, which was not in dispute, was statutorily protected from personal or property execution for matters, which are covered by the policy.
xiv) That, the main issue here was that, the respondents had a decree against the applicant a policyholder, but, the insurance, the insurer, had gone under, hence exposing the applicant to liability for execution.
xv) That, nonetheless, the state, aware of the risk and consequences of an insurance company collapsing, had, vide the main law, taken steps to cushion and protect policyholders, and a fund to compensate the victims was in place and operating.
xvi) That, none of the parties disputed that the fund was paying and settling the verified claims, it was just a matter of time and when, and so, the court had discretion to hold execution in honor of the objective of the law that is, S. 179(1) of The Insurance Act.
xvii) That, whencefore, here, the applicant is contending that, the magistrate did not look into the provisions of the law, the objectives behind, that law, and finally, did not comment or rule about the objective and end goal of the fund, and given, the aim of the fund to settle the claims for victims; whether it was just, fair and good to order for arrest of the applicant.
xviii) That, the applicant having advanced a good case, with serious points of law, contend that an exparte temporary stay is deserving pending service and hearing of the matters interparte.
xix) That, most compelling reason for an exparte stay is that, a warrant of arrest is personal, it is drastic and draconian, and has the effects of curtailing the liberty and freedom of the applicant, notwithstanding that, the applicant has a good case and reasons as to why there should be no personal execution, unless it is demonstrated that, the fund has rejected the respondents' claim.
The Application is supported by the Affidavit of Francis Muya the applicant sworn on 10th September 2026. The applicant reiterated the above grounds in his affidavit and I need not repeat them here. The court directed that application be canvassed by way of oral submissions. The Court also gave the respondent time to file his reply to the application. However the respondent never filed a replying affidavit despite the fact that the court gave them time to do so. The application proceeded by way of oral submissions. The Applicant's Counsel Mr. Kilonzo submitted that they have laid out elaborative grounds and facts in support of the application. That the key issue is that the Applicant is protected under section 179 of the Insurances Act from being subjected to execution as he had insured his Motor vehicle with Blue Shield Insurances Company which was declared bankrupt and put under liquidation.
That the insurance company was supposed to settle the claim and since it could not he is protected under section 179 of the Insurances Act from execution. The applicant attached the claim documents as well as the notice to show cause and the Applicant's affidavit. He submits that notwithstanding the provision warrant of arrest was issued. That the Insurance accepted the principal amount of Kenya shilling 1,300,000 but costs and interests were not.
The applicant submits that the learned Magistrates erred by failing to appreciate the protection established under Section 179 of the Insurances Act and the Respondent's claim has been accepted. That the court cannot order execution against the Applicant as the state had taken action to pay the Claimant. That the court to exercise discretion and let the process to take place. The respondent opposed the application and submitted that the Application is not properly before the court as leave was not obtained from the lower Court. He relies on Section 75 of the Civil Procedure Act and Rule 43 (1) CPR which requires that in some instances leave has to be sought from the lower Court, on this Court.
That order 43 Rule 2. Civil Procedure Rules is coached in mandatory terms and leaves no room for the exercise of court's discretion.
That the issue for determination is whether the respondent should be restricted from executing. He contends that Section 179 of the insurance Act does not bar execution of lawful a decree. That the relationship between the insurance and the insured is contractual and a party is not restricted from proceedings. That both are bound by the agreement. The respondent has asked the court to consider that Judgment was entered in 2022 and 3 years down the line, the claim has not been settled. That the fact that the claim has been acknowledged is not a guarantee that it will be settled. He urged the Court to find that the Applicant can pay and claim a refund. That time is running out and when it lapses the respondent will be prejudiced as there is no room for extension. In response, the Counsel for the Applicant submitted that under order 3 rule 1 Civil Procedure Rules the appeal is as of right and no leave is required. That execution was done in 2024 and the fund was established in 2024. That section 179 is mandatory and protects policy holders.
That the appeal was filed without unreasonable delays. That order 42 of the Civil Procedure Rules applies that the Claim has been processed and the respondent is not likely to be prejudiced
analysis and determination
I have considered the appeal and the application. The Respondent has raised a substantive issue which touches on the jurisdiction of this Court. It is now well settled by various authorities of this this the court and the Court of appeal, that a Court of law downs its tools upon discovering that it lacks jurisdiction. I will therefore consider whether this appeal is properly before this Court. Section 75 (1) of the Civil Procedure Act provides for specific orders from which an appeal lies as of right to a higher Court or with leave of the court.
The respondent has submitted on the issue that touches on the issue of jurisdiction of this court to entertain the appeal.
Order 43 rule 1 Civil Procedure Rules lists the provisions under which an appeal lies as of right under order 43 (1) of the Civil Procedure Rules. The appeals that lie as of right are those appeals under order 42 rules 3,14, 21, 23 and 35. Order 43 Rule (2) provides that all other appeals shall be with leave of the Court. Order 43 rule (1) provides that:
An appeal shall Lie as of right from the following orders and rules under the provision of section 75 (1) (h) of the Act.
…..,..........
Order 42 Rules 3,14, 21, 23, and 35
An appeal shall be with the leave of the Court from any other order made under these Rules”
“An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from either orally at the time the order is made or within 14 days from date of such order”.
Save where otherwise expressly provided in this rule, order includes both and order granting relief applied for and order refusing such relief.
4(2) The rules of order 42 shall apply so far as may be to appeals from orders.
…………
The provisions stipulates that in all other cases, the party wishing to appeal must first seek leave of the court to appeal. That is to say unless the order sought to be appealed against falls under the express orders which are appeallable as of right under Order 43 (1) Civil Procedure Rules, leave to appeal must first be obtained before such appeal can be preferred or in enlargement of time for filing of an appeal can be sought and obtained.
The question is whether the order or ruling that is sought to be appealed against is one of the orders falling under Order 43 Rule (1) (Supra) which an appeal lies as of right or one where the applicant was required to seek leave Nyutu agrovet versus Airtel Networks Limited 2015 eklr the court of appeal held that the point of departure must be the recognition that the right of appeal with or without leave must be conferred by statute and the same is never to be implied, Nova Limited Alcon International Limited.-the court of appeal stated that, the power or authority to hear an appeal is not synonymous with the right of appeal which a litigant should demonstrate that a given law gives him or her to come before this Court’s (jurisdiction) as well as the rights of appeal must be conferred by law not by implication or inference. If the power and authority of that Court is not conferred by the law then that Court has no business to entertain the matter. (see owners of 2 motor vessel Lilian versus Caltex oil (K) Limited (1989) KLR
I have considered these orders and rules as well as Section 75 (1) of the Civil Procedure Rules. The Notice to show cause why execution should not issue was under Order to xx1 rule 18 of the Civil Procedure Rules. The Learned Magistrate stated that the ruling was with respect to undated notice to show cause why execution should issue and was under Order 18 rule 22 of the Civil Procedure Rules. The appeal is against the ruling of the learned magistrate. Under Order 43 rule 1 provision is made of appeals that lie as a matter of right and appeals which would lie only with leave of Court issuing the order or the court to which the appeal lies. If leave was not granted by the lower Court, I have considered the provisions under which the application is brought and in particular order 42 rule 6 (1) & (2) being the procedural order under which the appeal is brought. The orders (provisions) are not listed under section 75:(1) of Civil Procedure Act or under order 43 (1) of the Civil Procedure Rules from which appeals lie automatically l? to the High Court as of right. It follows that the appellant was supposed to seek and obtain leave from the trial court or from this court before filing the appeal. The applicant did not seek leave from the trial Court or from this Court which he was supposed to do if he was denied by the trial Court. The contention by the applicant was that the appeal lies to this court as of right. This was not the case. This inevitably means that he did not seek leave to appeal from the trial court and this appeal is not properly before this court the court of appeal has discussed the issue of filing an appeal without leave of the court in Peter Nyagah Muvake versus Joseph Mutunga (2015) eKLR where it held as follows:
“As to whether appeal is competent, there is no contest that then appeal arises from the decision of Mabeya J. made under order 42 rule 6 of the Civil Procedure Rules. Section 75 of the Civil Procedure Act Cap 21 stipulates the thematic orders from which appeal lies as of right. Appeals from other orders lie only with leave of the court. An order made under order 42 rule 6 is not exempt from the requirement of leave. It does not lie as of right. In this case the applicant did not seek or obtain leave to appeal against the decision of Mabeya J. As of the effect of this is that no appeal lies without such leave, this court would have no jurisdiction to entertain hear or determine the Applicant's appeal……….. the procurement of leave to appeal is a ‘Sine qua non to the lodging of notice of appeal without leave there can be no valid notice of appeal. The jurisdiction of this court was properly invoked. in short an application for stay of execution in an intended appeal against another that is appealable only with leave of the court which has not been sought and obtained is “dead in the water we so find and hold,’
Guided by this decision, what is clear is that filing of an appeal without first obtaining leave when such leave was required renders the appeal incompetent as the jurisdiction of the Court to entertain the appeal was not properly invoked. Such anomaly cannot be wished away as procedural technicality. In Kakuta MaiMai Hamisi versus Peris Pesi Tobiko and two others 2013 eKLR the Court of appeal held that “the question of right of appeal goes to jurisdiction and is so fundamental. we are unprepared to hold that absence of statutory donation or conferment is a mere procedural technicality to be ignored by parties or a court by pitching tent at Article 159 (2) (d) of the constitution which we do not consider to be a panacea nay of a general white wash that cures and mends all ills misdeeds and defaults of litigation. Having already found that jurisdiction stands in a higher firmer and more peremptory position than Procedural Rules, we can only reiterate that it goes to the very heart of substantive validity of Court processes and determinations and certainly does not run a foul about the substance procedure dichotomy of Article 159 of the constitution. The Appellant was supposed to seek leave and obtain it before filing the appeal. This he failed to do. The appeal before me is therefore incompetent. This court lacks jurisdiction to determine the appeal. I therefore order that this application and the appeal are not properly before this code and are struck out, costs to the respondent.
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEAL NO. E070 OF 2025
FRANCIS MUYA ………………………..………….. APPLICANT
-VERSUS –
RODA KANINI MWEMA & HELLEN MWENDE MUMO
Suing as the administrators of the estate of the late
FLORA KALUNGU (Deceased)…………………..RESPONDENTS
RULING
The ruling relates to the application dated 10th September 2025 which was filed under certificate of urgency and seeking orders that the application be certified as urgent and service be dispensed with. That a temporary order of stay of execution of the Judgment, decree and warrants of Arrests in execution or any further proceedings in execution against the applicant in the lower Court be issued. That pending the hearing and determination of the appeal of execution of Judgment and decree of the lower Court against the applicant.
That cost of the application be in the appeal. The court certified the application as urgent and granted prayer number 2 in the interim pending inter parties hearing of the application.
The application was based on the following grounds:
i) That, the applicant was adjudged as liable for the accident that occasioned Injures to the respondents' deceased kinsman, following a motor vehicle traffic accident.
ii) That, the computed quantification of damages was assessed at Ksh.1, 380, 500/= as at the time of judgment, on 16.9.2022
iii) That, the motor vehicle, which occasioned the accident was insured by Blue Shield Insurance Company Ltd, which, as at the time of delivery of the judgment had been adjudged bankrupt and placed under statutory management and later under liquidation or receivership.
iv) That, then later, in 2024, the respondents, the decree-holders, issued a notice to show cause for the sum of Ksh,1, 880, 715/=, which sum, includes, interests and party and party costs.
v) That, the applicant filed an affidavit to show cause, where, the applicant contended that, pursuant to S. 179 (1) of The Insurance Act, a state corporation was established under National Treasury Economic Planning Department, that is Policyholders Compensation Fund (PCF) and so, the applicant was not liable for personal or property execution.
vi) That, further to the establishment of the Policyholders Compensation Fund (PCF), a public notice was issued by the fund, calling for all policyholders and victims of accidents of vehicles insured by the impugned insurance company in question to lodge their claims for processing.
vii) That, the applicant contended, and it was not disputed that, a claim for the respondent was lodged, a claim number was allocated, an account opened for the respondents into which the funds due to the respondents would be wired directly, and more so, the claim was pending for payment.
viii) That in addition to the afore stated matters, the applicant's position was that, given the nature of the claim, and understandings the need to examine, scrutinize the claims and cushioning against fraud, it was expected that, the fund, would take some time to do due diligence, verify and sort out the genuine claims and the fictitious ones, and once done, pay the verified ones.
ix) That, the applicant contended in the lower court that, this claim was just one among the many others undergoing the process of verification, and this fact was not disputed at all.
x) That, there was a certain level of impatience demonstrated by the respondents in the lower court, and the lower court seems to have brought into the same level of impatience, and overlooked the statutory protection given to the applicant at the moment.
xi) That, finally, parties were directed to render submissions, which was done, and at the end of the day, the lower court failed to examine the implications of S. 179 (1) The Insurance Act, and the establishment of the fund, whose primary objective (purpose) as per the public notice was "It provide compensation to claimants of the insurer that has been put under statutory management or whose license has been cancelled and for the secondary purpose or increasing [he general public confidence in the insurance sector."
xii) That, over and above the above, the applicant's contention was that, under S. 179(1) The Insurance Act, was protected or cushioned against execution, which states:
"The Cabinet Secretary shall, for the protection of_ policyholders, establish a Policyholders' Compensation Fund, in his section referred to as "the Fund” to provide compensation to the claimant of insurer placed under a manner appointed under Section 67C 2 or whose license has been cancelled under the Act."
xiii) That, henceforth, as per the statute, the applicant, as a policyholder, which was not in dispute, was statutorily protected from personal or property execution for matters, which are covered by the policy.
xiv) That, the main issue here was that, the respondents had a decree against the applicant a policyholder, but, the insurance, the insurer, had gone under, hence exposing the applicant to liability for execution.
xv) That, nonetheless, the state, aware of the risk and consequences of an insurance company collapsing, had, vide the main law, taken steps to cushion and protect policyholders, and a fund to compensate the victims was in place and operating.
xvi) That, none of the parties disputed that the fund was paying and settling the verified claims, it was just a matter of time and when, and so, the court had discretion to hold execution in honor of the objective of the law that is, S. 179(1) of The Insurance Act.
xvii) That, whencefore, here, the applicant is contending that, the magistrate did not look into the provisions of the law, the objectives behind, that law, and finally, did not comment or rule about the objective and end goal of the fund, and given, the aim of the fund to settle the claims for victims; whether it was just, fair and good to order for arrest of the applicant.
xviii) That, the applicant having advanced a good case, with serious points of law, contend that an exparte temporary stay is deserving pending service and hearing of the matters interparte.
xix) That, most compelling reason for an exparte stay is that, a warrant of arrest is personal, it is drastic and draconian, and has the effects of curtailing the liberty and freedom of the applicant, notwithstanding that, the applicant has a good case and reasons as to why there should be no personal execution, unless it is demonstrated that, the fund has rejected the respondents' claim.
The Application is supported by the Affidavit of Francis Muya the applicant sworn on 10th September 2026. The applicant reiterated the above grounds in his affidavit and I need not repeat them here. The court directed that application be canvassed by way of oral submissions. The Court also gave the respondent time to file his reply to the application. However the respondent never filed a replying affidavit despite the fact that the court gave them time to do so. The application proceeded by way of oral submissions. The Applicant's Counsel Mr. Kilonzo submitted that they have laid out elaborative grounds and facts in support of the application. That the key issue is that the Applicant is protected under section 179 of the Insurances Act from being subjected to execution as he had insured his Motor vehicle with Blue Shield Insurances Company which was declared bankrupt and put under liquidation.
That the insurance company was supposed to settle the claim and since it could not he is protected under section 179 of the Insurances Act from execution. The applicant attached the claim documents as well as the notice to show cause and the Applicant's affidavit. He submits that notwithstanding the provision warrant of arrest was issued. That the Insurance accepted the principal amount of Kenya shilling 1,300,000 but costs and interests were not.
The applicant submits that the learned Magistrates erred by failing to appreciate the protection established under Section 179 of the Insurances Act and the Respondent's claim has been accepted. That the court cannot order execution against the Applicant as the state had taken action to pay the Claimant. That the court to exercise discretion and let the process to take place. The respondent opposed the application and submitted that the Application is not properly before the court as leave was not obtained from the lower Court. He relies on Section 75 of the Civil Procedure Act and Rule 43 (1) CPR which requires that in some instances leave has to be sought from the lower Court, on this Court.
That order 43 Rule 2. Civil Procedure Rules is coached in mandatory terms and leaves no room for the exercise of court's discretion.
That the issue for determination is whether the respondent should be restricted from executing. He contends that Section 179 of the insurance Act does not bar execution of lawful a decree. That the relationship between the insurance and the insured is contractual and a party is not restricted from proceedings. That both are bound by the agreement. The respondent has asked the court to consider that Judgment was entered in 2022 and 3 years down the line, the claim has not been settled. That the fact that the claim has been acknowledged is not a guarantee that it will be settled. He urged the Court to find that the Applicant can pay and claim a refund. That time is running out and when it lapses the respondent will be prejudiced as there is no room for extension. In response, the Counsel for the Applicant submitted that under order 3 rule 1 Civil Procedure Rules the appeal is as of right and no leave is required. That execution was done in 2024 and the fund was established in 2024. That section 179 is mandatory and protects policy holders.
That the appeal was filed without unreasonable delays. That order 42 of the Civil Procedure Rules applies that the Claim has been processed and the respondent is not likely to be prejudiced
analysis and determination
I have considered the appeal and the application. The Respondent has raised a substantive issue which touches on the jurisdiction of this Court. It is now well settled by various authorities of this this the court and the Court of appeal, that a Court of law downs its tools upon discovering that it lacks jurisdiction. I will therefore consider whether this appeal is properly before this Court. Section 75 (1) of the Civil Procedure Act provides for specific orders from which an appeal lies as of right to a higher Court or with leave of the court.
The respondent has submitted on the issue that touches on the issue of jurisdiction of this court to entertain the appeal.
Order 43 rule 1 Civil Procedure Rules lists the provisions under which an appeal lies as of right under order 43 (1) of the Civil Procedure Rules. The appeals that lie as of right are those appeals under order 42 rules 3,14, 21, 23 and 35. Order 43 Rule (2) provides that all other appeals shall be with leave of the Court. Order 43 rule (1) provides that:
An appeal shall Lie as of right from the following orders and rules under the provision of section 75 (1) (h) of the Act.
…..,..........
Order 42 Rules 3,14, 21, 23, and 35
An appeal shall be with the leave of the Court from any other order made under these Rules”
“An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from either orally at the time the order is made or within 14 days from date of such order”.
Save where otherwise expressly provided in this rule, order includes both and order granting relief applied for and order refusing such relief.
4(2) The rules of order 42 shall apply so far as may be to appeals from orders.
…………
The provisions stipulates that in all other cases, the party wishing to appeal must first seek leave of the court to appeal. That is to say unless the order sought to be appealed against falls under the express orders which are appeallable as of right under Order 43 (1) Civil Procedure Rules, leave to appeal must first be obtained before such appeal can be preferred or in enlargement of time for filing of an appeal can be sought and obtained.
The question is whether the order or ruling that is sought to be appealed against is one of the orders falling under Order 43 Rule (1) (Supra) which an appeal lies as of right or one where the applicant was required to seek leave Nyutu agrovet versus Airtel Networks Limited 2015 eklr the court of appeal held that the point of departure must be the recognition that the right of appeal with or without leave must be conferred by statute and the same is never to be implied, Nova Limited Alcon International Limited.-the court of appeal stated that, the power or authority to hear an appeal is not synonymous with the right of appeal which a litigant should demonstrate that a given law gives him or her to come before this Court’s (jurisdiction) as well as the rights of appeal must be conferred by law not by implication or inference. If the power and authority of that Court is not conferred by the law then that Court has no business to entertain the matter. (see owners of 2 motor vessel Lilian versus Caltex oil (K) Limited (1989) KLR
I have considered these orders and rules as well as Section 75 (1) of the Civil Procedure Rules. The Notice to show cause why execution should not issue was under Order to xx1 rule 18 of the Civil Procedure Rules. The Learned Magistrate stated that the ruling was with respect to undated notice to show cause why execution should issue and was under Order 18 rule 22 of the Civil Procedure Rules. The appeal is against the ruling of the learned magistrate. Under Order 43 rule 1 provision is made of appeals that lie as a matter of right and appeals which would lie only with leave of Court issuing the order or the court to which the appeal lies. If leave was not granted by the lower Court, I have considered the provisions under which the application is brought and in particular order 42 rule 6 (1) & (2) being the procedural order under which the appeal is brought. The orders (provisions) are not listed under section 75:(1) of Civil Procedure Act or under order 43 (1) of the Civil Procedure Rules from which appeals lie automatically l? to the High Court as of right. It follows that the appellant was supposed to seek and obtain leave from the trial court or from this court before filing the appeal. The applicant did not seek leave from the trial Court or from this Court which he was supposed to do if he was denied by the trial Court. The contention by the applicant was that the appeal lies to this court as of right. This was not the case. This inevitably means that he did not seek leave to appeal from the trial court and this appeal is not properly before this court the court of appeal has discussed the issue of filing an appeal without leave of the court in Peter Nyagah Muvake versus Joseph Mutunga (2015) eKLR where it held as follows:
“As to whether appeal is competent, there is no contest that then appeal arises from the decision of Mabeya J. made under order 42 rule 6 of the Civil Procedure Rules. Section 75 of the Civil Procedure Act Cap 21 stipulates the thematic orders from which appeal lies as of right. Appeals from other orders lie only with leave of the court. An order made under order 42 rule 6 is not exempt from the requirement of leave. It does not lie as of right. In this case the applicant did not seek or obtain leave to appeal against the decision of Mabeya J. As of the effect of this is that no appeal lies without such leave, this court would have no jurisdiction to entertain hear or determine the Applicant's appeal……….. the procurement of leave to appeal is a ‘Sine qua non to the lodging of notice of appeal without leave there can be no valid notice of appeal. The jurisdiction of this court was properly invoked. in short an application for stay of execution in an intended appeal against another that is appealable only with leave of the court which has not been sought and obtained is “dead in the water we so find and hold,’
Guided by this decision, what is clear is that filing of an appeal without first obtaining leave when such leave was required renders the appeal incompetent as the jurisdiction of the Court to entertain the appeal was not properly invoked. Such anomaly cannot be wished away as procedural technicality. In Kakuta MaiMai Hamisi versus Peris Pesi Tobiko and two others 2013 eKLR the Court of appeal held that “the question of right of appeal goes to jurisdiction and is so fundamental. we are unprepared to hold that absence of statutory donation or conferment is a mere procedural technicality to be ignored by parties or a court by pitching tent at Article 159 (2) (d) of the constitution which we do not consider to be a panacea nay of a general white wash that cures and mends all ills misdeeds and defaults of litigation. Having already found that jurisdiction stands in a higher firmer and more peremptory position than Procedural Rules, we can only reiterate that it goes to the very heart of substantive validity of Court processes and determinations and certainly does not run a foul about the substance procedure dichotomy of Article 159 of the constitution. The Appellant was supposed to seek leave and obtain it before filing the appeal. This he failed to do. The appeal before me is therefore incompetent. This court lacks jurisdiction to determine the appeal. I therefore order that this application and the appeal are not properly before this code and are struck out, costs to the respondent.