Background
1. This is an appeal from the Ruling and Order of the trial court delivered on 15th April 2021 in the TAMU SPMCC No. 22 of 2020, in which the court disallowed the Appellant’s application for adjournment.
2. The background of the matter is that on 15th April 2021, the trial court issued an order declining an adjournment following an application by counsel for the Appellant/1st Defendant. The Court expressed itself as follows:-
“The record shows that the Defendant’s counsel entered appearance and defence on 15th June 2020, on 19th November 2020, advocate Turgut for the Defendants indicated during pre-trials that the suit was ripe for hearing, I agree with the Plaintiff’s advocate that the Defendant cannot be heard to raise this pre-trial issue one year down the line especially after participating in the pre-trials. I consequently decline the adjournment and order for case to proceed. The application to cease acting may be filed at any stage of any event, but is not a reason to derail this hearing.”
The Appeal
3. Aggrieved by the order of the trial court, the Appellant lodged an appeal before this court vide a Memorandum of Appeal dated 20th April 2021, citing the following grounds of appeal;
i. The learned trial magistrate erred in law and in fact in overruling the Appellant’s prayer for adjournment despite giving sufficient reasons to warrant grant of the same.
ii. The learned trial magistrate erred in law and in fact in holding that the matter to proceed for hearing, yet the Appellant’s counsel had no instructions from the client to proceed as there were issues of representation which were to be sorted out before the hearing proceeds.
iii. The learned trial magistrate erred in law and in fact in holding that the matter to proceed for hearing yet the Appellan’s counsel was awaiting further instructions from the Client on whether the 1st Respondent herein was the insured’s employee and whether we should cease acting as the claim would not be payable under the motor policy if the 1st Respondent was indeed the insure’s driver.
4. The appeal proceeded by way of written submissions. The Appellant filed submissions dated 26th May 2023 whereas the Respondent’s submissions are dated 10th May 2023.
Appellant’s submissions
5. The Appellant submitted that setting aside an ex parte judgment and or proceedings is a matter for the discretion of the Court.
6. It was urged by the Appellant that the Appellant on 15 April 2021 sought an adjournment on the grounds that she had sought further instructions to cease acting, having noted that the 1st Respondent was the insured’s driver at the time of the accident. The Appellant asserted that the trial magistrate erroneously denied the adjournment despite the Appellant having shown sufficient cause.
7. The Appellant submitted that no prejudice would have been occasioned if adjournment was to be granted and an award of costs would have properly and sufficiently compensated the 1st Respondent for any delay caused. The Appellant relied on, among others, the decision in H. K. Shah & another vs Osman Allo (1946) EACA 45, where the Court held that:-
“The granting or refusal of an application for adjournment is, of course, a matter of discretion, but the discretion must be exercised judicially. The authorities go to show that the elements to be taken into consideration are (1) the adequacy of the reasons given for the application for adjournment; (2) how far, if at all, the other party is likely to be prejudiced by an adjournment; and (3) how far such other party can be suitably compensated by mulcting the applicant in costs.”
8. The Appellant contended that circumstances under which the adjournment was denied was unfair and amounted to it being condemned unheard contrary to Article 50(1) and 25 (c) of the Constitution, which provides for right to fair trial. The Appellant satisfied the gorunds for the grant of an adjournment and the same ought to have been granted.
9. The Appellant therefore calls upon this court to interfere with the discretion of the trial magistrate by inviting the court to look at among others, the case of Savannah Development Company Limited vs Merchantile Company Limited CA No. 120 of 1992, and allow the appeal with costs.
Respondent’s submissions
10. The Respondent submitted that this court lacks jurisdiction to hear this dispute because the ruling made on 15th April 2021 was premised on Order 9 and 11 of the Civil Procedure Rules which is on the issue of representation, and it was therefore necessary that leave from the court to appeal be sought prior to filing of the appeal as required under Section 75 of the Civil Procedure Act and Order 43 (2) of the Civil Procedure Rules.
11. The Respondent maintained that in the instant appeal, no leave was obtained from the trial court, making the appeal incompetent. The Respondent cited among others, the decision in the case of Stephen Omondi Juma vs Sprocer Awuor Rabote (2022) eKLR, in support of this argument.
12. Regarding the prayer for setting aside the proceedings, the Respondent submitted that the same is not obtainable since the Appellant’s counsel, who was present in court on the day of the trial (15th April 2021), chose to exit court while PW1 was testifying. Citing the case of Margaret Wairimu Magara & another vs Faith Wanjiku Gikunju (2017)eKLR, the Respondent submitted that the trial court, having declined to adjourn the case, the Appellant still had the option of proceeding with the plaintiff’s case, but not to exit court.
13. The Respondent also submitted that the Appellant has not met the threshold for the grant of the orders of setting aside as laid down in Shah vs Mbogo & another (1967) EA 116.
14. Consequently, the Respondent urged this court to dismiss the Appellant’s appeal with costs to the Respondent.
Analysis and Determination
15. This being a first appeal, the duty of this court is to re-evaluate and assess the evidence and make its own conclusions, keeping in mind that, unlike the appellate court, it did not have the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In Peters vs Sunday Post Limited [1958] EA 424, the Court of Appeal stated that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
16. I have carefully considered the appeal herein, the rival submissions and the entire record together with the cited authorities. The issue for determination is as follows;
i. Whether this court has jurisdiction to entertain this appeal on account of failure by the Appellant to obtain leave to appeal?
ii. Whether the Appellant has met the threshold for setting aside the proceedings and all the consequential orders issued on 15th April 2021?
17. Jurisdiction of a court emanates either from the Constitution or Statute. The court cannot confer jurisdiction upon itself. Jurisdiction was discussed in the celebrated case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989), where the court held that;-
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
18. Section 75 of the Civil Procedure Act provides that; -
(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—
a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;
b) an order on an award stated in the form of a special case;
c) an order modifying or correcting an award;
d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
e) an order filing or refusing to file an award in an arbitration without the intervention of the court;
f) an order under section 64;
g) an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;
h) any order made under rules from which an appeal is expressly allowed by rules.
19. Order 43, rule 1 of the Civil Procedure Rules provides the orders in which appeals would lie as of right of a party. Rule 2 of the Order provides that an appeal shall lie with the leave of the court from any other order made under these rules. Therefore, unless the order sought to be appealed falls under those specifically listed under Order 43, Rule 1, then an appellant must obtain requisite leave before filing an appeal.
20. Further, Order 43 rule 3 of the Civil Procedure Rules provides that;-
“An application for leave to appeal under Section 75 of the Civil Procedure Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order was made, or within fourteen days from the date of such order.”
21. The provisions of Order 43 rule 3 are couched in mandatory terms, and the Appellant is obliged to obtain leave before filing an appeal. It is a procedure that ought to be followed. In Nyutu Agrovet Limited vs Airtel Nextworks Ltd (2015) eKLR, the court of Appeal held as follows:
“Where there was 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.”
22. Similarly, Stephen Nyasani Menge vs Rispan Onase (2018)eKLR, the Court held that;
“Under Order 43 rule (3) such leave has to be sought from the court that made the order either at the time the order is made by way of an oral application or within 14 days from the date the order was made. The requirement is couched in mandatory terms and my view is that where leave to appeal is a pre-requisite before an appeal can be lodged, failure to seek and obtain leave is fatal and consequently, no competent appeal can be lodged against such an order.”
23. It is clear that the instant appeal does not emanate from the orders outlined under Order 43 Rule 1, in which an appeal lies as of right. This appeal relates to the provisions of Order 9 and 11 of the Civil Procedure Rules, which do not fall under the category in Order 43, rule 1, and therefore leave is mandatory before filing an appeal. No evidence has been shown that leave was either sought or obtained.
24. In the premises, it is my considered view that obtaining leave was mandatory before instituting the present appeal. Any appeal filed without complying with the provisions of the law is fatally defective for want of leave. The appeal before me is thus incompetent.
25. The appeal having failed for lack of leave, this court will not proceed to determine the remaining issues since doing so would not be of much value but would be merely an academic exercise and a waste of precious judicial time.
26. For the reasons above, this appeal is devoid of merit and it is hereby dismissed with costs to the Respondent.
27. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 15TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.