REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E112 OF 2025
BETWEEN
MOSES MAINGI ..................................................... APPELLANT/RESPONDENT
VERSUS
JULIET NZULA NDOLO ............................................RESPONDENT/APPLICANT
RULING
1. Before this court is an application by way of Notice of Motion dated 16/10/2025 brought under Sections IA 1B 3A and 800 the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules, and all other enabling provisions of the law seeking the following reliefs namely:-
a) THAT the Honourable Court be pleased to set aside and/or review the orders issued on 13th May 2025 dismissing the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 and the same be listed down for hearing on its merits.
b) THAT the Respondent be granted a fair hearing to prosecute her Preliminary Objection on its merits by filing written submissions for the court to understand the gist of her Objection.
c) Such further and/or other orders be made as this Honourable Court may deem just and expedient in the circumstances.
d) THAT the costs of the application be provided for.
2. The grounds for this application are listed as follows:-
a) THAT the Respondent/Appellant herein filed an appeal dated 06.05.2025.
b) THAT the Applicant strenuously opposed the same by filing a Preliminary Objection dated 12.05.2025 and a Replying Affidavit sworn on the same day.
c) THAT the Preliminary Objection was on 2 separate and distinct grounds being:
i. The Appellant did not seek leave from the trial court before filing the appeal as the appeal did not lie as of right but with leave of the trial court and not this court.
ii. The Appellant's advocates did not seek leave from the trial court before filing the appeal and the leave granted by this court cannot apply retrospectively.
d) THAT when the matter came up for hearing on 13.05.2025, the Honourable Court dismissed the Preliminary Objection summarily in its entirety and reserved a ruling date on the Respondent's application.
e) THAT the Honourable Court misunderstood the nature and basis of the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 thereby summarily dismissing her unheard
f) THAT under Sections IA 1B 3A and 800 the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules THAT the Honourable Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record.
g) THAT the court only granted leave to the Appellant's advocates to come on record and not leave to file appeal on itself.
h) THAT even then, the leave granted to the Advocates to come on record cannot apply retrospectively.
i) THAT it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
j) THAT no prejudice will be occasioned to the Appellant/Respondent that cannot be compensated by way of costs if the orders sought herein are granted.
k) THAT it is in the interest of justice and fairness that the application is allowed as prayed.
3. The application is supported by an affidavit sworn by the applicant on 07/05/2025 where she has majorly reiterated the above grounds. She avers that the Court misunderstood the nature and basis of the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 thereby summarily dismissing her unheard. That the Preliminary Objection was not based on the timing of the filing of the appeal but on the absence of a right of appeal and failure by the Appellant to seek leave from the trial court under Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules wherefore the Appellant had no automatic right of appeal and did not seek or obtain leave prior to filing the appeal, rendering the appeal incompetent.
4. The applicant contends that the Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record thus it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
5. The application is opposed by the Respondent through the Replying Affidavit sworn on 13/09/2025. According to the Respondent, this application is made in bad fault, bad in law and intended to vex and annoy him. The Respondent avers that the Preliminary Objection was rightly dismissed on 13/5/2025 after submissions by both parties. The ruling on the application dated 07/05/2025 was delivered on 14/5/2025 and the Respondent has duly complied with conditions imposed by court. That if the Applicant is aggrieved by the decision of this honourable court, her claim should lie in the right forum which is the Court of Appeal. The Respondent states further that this court is officio and cannot sit on its decision as an appellate court.
6. That what the Applicant is simply saying the honourable court misinterpreted the law and misinterpretation of the law is a ground of appeal and not for review as sought by the Applicant. The Respondent submits that no error nor any grounds of review have been advanced. In a nutshell the application by the Applicant is misplaced ill-conceived, and a total abuse of the court process hence it should be dismissed will costs to the Respondent.
7. This court has set out both the Applicant’s case and the reply or opposition by the Respondent. The Applicant has filed the application under the provisions of Sections IA 1B 3A and 800 (probably this ought to be Section 80) of the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules. The Applicant is seeking to set aside the order of this court based on the absence of a right of appeal and failure by the Appellant/Respondent to seek leave from the trial court under Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules wherefore the Appellant had no automatic right of appeal and did not seek or obtain leave prior to filing the appeal, rendering the appeal incompetent. The applicant contends that the Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record thus it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
8. The record shows that the appeal filed by the Appellant herein emanated from Machakos Small Claims Court in SCCCOMM Claim No. E028 of 2023 in which a default judgement was entered on 27/04/2023 against the Appellant and later the Appellant was committed to civil jail on 06/05/2025.
9. Appeals to this court from the Small Claims Court are provided for under Section 38 of the Small Claims Act No. 2 of 2016. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act.
Section 38 of the Small Claims Court Act provides for appeals as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
Section 43 of the Small Claims Court Act provides for Setting aside of orders as follows:-
The Court may on the application of any party to the proceedings set aside any of its orders and make such further orders as it thinks just.
10. The above cited two provisions or any other provision in the Small Claims Act do not provide for seeking of leave by an aggrieved party to either appeal to this court or to review an order of the trial Adjudicator. Therefore, it is totally wrong for the Applicant/Respondent to raise a Preliminary Objection and claim that the Appellant did not seek leave from the trial court before filing the appeal as the appeal did not lie as of right but with leave of the trial court and not this court. The Applicant has in any event failed to cite or refer to the relevant provision of the law, if any, to that effect. Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules does not at all apply to appeals from the Small Claims Court and the same is misplaced.
11. It is trite law that Preliminary Objections must be founded on clear pure points of law. In the famous case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on the locus classicus of what merits as a preliminary objection, the court observed thus;
“…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.”
12. For the above reason guided by the above famous Mukisa Biscuit case (supra) and in order to fast-track the matter, this court believes that it properly delivered an extempore ruling on 13/05/2025 disallowing the Applicant/Respondent’s Preliminary Objection dated 12/05/2025 as the same was misplaced and unmeritorious.
13. The court further gave directions that the Appellant’s application dated 07/05/2025 for stay or suspension of orders of committal to civil jail execution be head through written submissions. Parties complied by filing their respective submissions following which this court delivered a ruling on 14/05/2025 setting out conditions for grant of the orders including payment of Kshs.100,000/= to the Respondent’s Advocate by the Appellant and a further deposit into court of Kshs.600,000/= as security for the due performance of the decree. The Appellant has in the Replying Affidavit confirmed to have complied by the conditions given by this court and this position has not been disputed by the Respondent/Applicant.
14. The Applicant did not appeal against the said ruling of 14/05/2025 and does not seem to be having any issue with the same. In this regard, this court considered the application for stay and suspension of the committal to civil jail of the Appellant and gave conditions for the suspension thereof, the court is now functus officio. An application for review cannot be used to circumvent or substitute an appeal process.
15. If the Applicant felt that the Preliminary Objection was wrongly dismissed, the proper avenue was to file an appeal rather that prefer this application for review. The grounds cited by the Applicant are grounds for appeal and not review. See Ndungu Njau v National Bank of Kenya Ltd (2008) KECA 188 (KLR) in which the Court of Appeal held that the grounds cited by the appellant were grounds for appeal and did not fall within the scope of the Order XLIV Rule1 of the then Civil Procedure Rules.
16. The upshot is that the application dated 16/10/2025 is incompetent, bad in law and an abuse of the court process. The same is struck out with costs to the Appellant/Respondent assessed at Kshs.30,000/= to be paid before the next court date in this appeal.
17. Directions to be taken on the disposal of the appeal.
18. Orders accordingly
RULING DATED, SIGNED & DELIVERED AT MACHAKOS THIS 14TH MAY 2026
NOEL I. ADAGI
JUDGE
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E112 OF 2025
BETWEEN
MOSES MAINGI ..................................................... APPELLANT/RESPONDENT
VERSUS
JULIET NZULA NDOLO ............................................RESPONDENT/APPLICANT
RULING
1. Before this court is an application by way of Notice of Motion dated 16/10/2025 brought under Sections IA 1B 3A and 800 the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules, and all other enabling provisions of the law seeking the following reliefs namely:-
a) THAT the Honourable Court be pleased to set aside and/or review the orders issued on 13th May 2025 dismissing the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 and the same be listed down for hearing on its merits.
b) THAT the Respondent be granted a fair hearing to prosecute her Preliminary Objection on its merits by filing written submissions for the court to understand the gist of her Objection.
c) Such further and/or other orders be made as this Honourable Court may deem just and expedient in the circumstances.
d) THAT the costs of the application be provided for.
2. The grounds for this application are listed as follows:-
a) THAT the Respondent/Appellant herein filed an appeal dated 06.05.2025.
b) THAT the Applicant strenuously opposed the same by filing a Preliminary Objection dated 12.05.2025 and a Replying Affidavit sworn on the same day.
c) THAT the Preliminary Objection was on 2 separate and distinct grounds being:
i. The Appellant did not seek leave from the trial court before filing the appeal as the appeal did not lie as of right but with leave of the trial court and not this court.
ii. The Appellant's advocates did not seek leave from the trial court before filing the appeal and the leave granted by this court cannot apply retrospectively.
d) THAT when the matter came up for hearing on 13.05.2025, the Honourable Court dismissed the Preliminary Objection summarily in its entirety and reserved a ruling date on the Respondent's application.
e) THAT the Honourable Court misunderstood the nature and basis of the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 thereby summarily dismissing her unheard
f) THAT under Sections IA 1B 3A and 800 the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules THAT the Honourable Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record.
g) THAT the court only granted leave to the Appellant's advocates to come on record and not leave to file appeal on itself.
h) THAT even then, the leave granted to the Advocates to come on record cannot apply retrospectively.
i) THAT it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
j) THAT no prejudice will be occasioned to the Appellant/Respondent that cannot be compensated by way of costs if the orders sought herein are granted.
k) THAT it is in the interest of justice and fairness that the application is allowed as prayed.
3. The application is supported by an affidavit sworn by the applicant on 07/05/2025 where she has majorly reiterated the above grounds. She avers that the Court misunderstood the nature and basis of the Respondent's/ Applicant's Preliminary Objection dated 12.05.2025 thereby summarily dismissing her unheard. That the Preliminary Objection was not based on the timing of the filing of the appeal but on the absence of a right of appeal and failure by the Appellant to seek leave from the trial court under Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules wherefore the Appellant had no automatic right of appeal and did not seek or obtain leave prior to filing the appeal, rendering the appeal incompetent.
4. The applicant contends that the Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record thus it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
5. The application is opposed by the Respondent through the Replying Affidavit sworn on 13/09/2025. According to the Respondent, this application is made in bad fault, bad in law and intended to vex and annoy him. The Respondent avers that the Preliminary Objection was rightly dismissed on 13/5/2025 after submissions by both parties. The ruling on the application dated 07/05/2025 was delivered on 14/5/2025 and the Respondent has duly complied with conditions imposed by court. That if the Applicant is aggrieved by the decision of this honourable court, her claim should lie in the right forum which is the Court of Appeal. The Respondent states further that this court is officio and cannot sit on its decision as an appellate court.
6. That what the Applicant is simply saying the honourable court misinterpreted the law and misinterpretation of the law is a ground of appeal and not for review as sought by the Applicant. The Respondent submits that no error nor any grounds of review have been advanced. In a nutshell the application by the Applicant is misplaced ill-conceived, and a total abuse of the court process hence it should be dismissed will costs to the Respondent.
7. This court has set out both the Applicant’s case and the reply or opposition by the Respondent. The Applicant has filed the application under the provisions of Sections IA 1B 3A and 800 (probably this ought to be Section 80) of the Civil Procedure Act Order 45 Rule 1 Order 51 Rule 1 the Civil Procedure Rules. The Applicant is seeking to set aside the order of this court based on the absence of a right of appeal and failure by the Appellant/Respondent to seek leave from the trial court under Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules wherefore the Appellant had no automatic right of appeal and did not seek or obtain leave prior to filing the appeal, rendering the appeal incompetent. The applicant contends that the Court therefore dismissed the Preliminary Objection on an erroneous premise, which amounts to an error apparent on the face of the record thus it is in the interest of justice that the orders be set aside and the matter be heard and determined on proper legal footing.
8. The record shows that the appeal filed by the Appellant herein emanated from Machakos Small Claims Court in SCCCOMM Claim No. E028 of 2023 in which a default judgement was entered on 27/04/2023 against the Appellant and later the Appellant was committed to civil jail on 06/05/2025.
9. Appeals to this court from the Small Claims Court are provided for under Section 38 of the Small Claims Act No. 2 of 2016. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act.
Section 38 of the Small Claims Court Act provides for appeals as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
Section 43 of the Small Claims Court Act provides for Setting aside of orders as follows:-
The Court may on the application of any party to the proceedings set aside any of its orders and make such further orders as it thinks just.
10. The above cited two provisions or any other provision in the Small Claims Act do not provide for seeking of leave by an aggrieved party to either appeal to this court or to review an order of the trial Adjudicator. Therefore, it is totally wrong for the Applicant/Respondent to raise a Preliminary Objection and claim that the Appellant did not seek leave from the trial court before filing the appeal as the appeal did not lie as of right but with leave of the trial court and not this court. The Applicant has in any event failed to cite or refer to the relevant provision of the law, if any, to that effect. Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules does not at all apply to appeals from the Small Claims Court and the same is misplaced.
11. It is trite law that Preliminary Objections must be founded on clear pure points of law. In the famous case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on the locus classicus of what merits as a preliminary objection, the court observed thus;
“…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.”
12. For the above reason guided by the above famous Mukisa Biscuit case (supra) and in order to fast-track the matter, this court believes that it properly delivered an extempore ruling on 13/05/2025 disallowing the Applicant/Respondent’s Preliminary Objection dated 12/05/2025 as the same was misplaced and unmeritorious.
13. The court further gave directions that the Appellant’s application dated 07/05/2025 for stay or suspension of orders of committal to civil jail execution be head through written submissions. Parties complied by filing their respective submissions following which this court delivered a ruling on 14/05/2025 setting out conditions for grant of the orders including payment of Kshs.100,000/= to the Respondent’s Advocate by the Appellant and a further deposit into court of Kshs.600,000/= as security for the due performance of the decree. The Appellant has in the Replying Affidavit confirmed to have complied by the conditions given by this court and this position has not been disputed by the Respondent/Applicant.
14. The Applicant did not appeal against the said ruling of 14/05/2025 and does not seem to be having any issue with the same. In this regard, this court considered the application for stay and suspension of the committal to civil jail of the Appellant and gave conditions for the suspension thereof, the court is now functus officio. An application for review cannot be used to circumvent or substitute an appeal process.
15. If the Applicant felt that the Preliminary Objection was wrongly dismissed, the proper avenue was to file an appeal rather that prefer this application for review. The grounds cited by the Applicant are grounds for appeal and not review. See Ndungu Njau v National Bank of Kenya Ltd (2008) KECA 188 (KLR) in which the Court of Appeal held that the grounds cited by the appellant were grounds for appeal and did not fall within the scope of the Order XLIV Rule1 of the then Civil Procedure Rules.
16. The upshot is that the application dated 16/10/2025 is incompetent, bad in law and an abuse of the court process. The same is struck out with costs to the Appellant/Respondent assessed at Kshs.30,000/= to be paid before the next court date in this appeal.
17. Directions to be taken on the disposal of the appeal.
18. Orders accordingly
RULING DATED, SIGNED & DELIVERED AT MACHAKOS THIS 14TH MAY 2026
NOEL I. ADAGI
JUDGE