Background
1. This ruling determines the application dated 24th October 2023 which seeks injunctive relief against the respondents from dealing with NAIROBI BLOCK 115/1128 (the suit property), pending the hearing and determination of an interlocutory appeal filed before this Court.
2. The applicants contend that the application should be allowed so as to preserve the substratum of the appeal, to which the applicants believe that they have an arguable appeal. It is their case that should the interim relief not be allowed, then they stand to suffer irreparable damage that cannot be compensated by way of damages.
3. The application is opposed by way of a replying affidavit sworn on 6th November 2023 by JACKLINE WAIRIMU NDUNG’U, a Senior Legal Officer working for the 1st respondent (the Bank). The Bank on its part contends that the grounds raised by the applicants that the Learned Magistrate determined the application on technicality have not been substantiated neither have the grounds of bias by the Learned Magistrate, as alleged by the applicants.
4. The Bank confirms that the Learned Magistrate considered all the issues before him and determined the same in accordance to the law.
Analysis and determination
5. I have carefully considered the pleadings, evidence and the submissions filed by the parties. The issue for determination is whether or not the applicants have met the threshold for granting of an interlocutory injunction.
6. The Bank raises a preliminary point which I must deal with before getting into the substance of the application. It is the Bank’s contention that this Honourable Court is being invited to decide on appeal where there exists no decision of the subordinate on record. Section 65(1)(b) of the Civil Procedure Rules is instructive that:
“…An appeal shall lie to the High Court …from any original decree or part of a decree of a subordinate court, on a question of law or fact;”
7. Order 42 rule 1(2) and 2 of the Civil Procedure Act further provides that:
“The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.” (emphasis mine)
8. It ought to be noted that the requirement to file a certified decree or order, or a certified copy of the decision that one seeks to appeal from, is a mandatory procedural requirement and a condition precedent to be fulfilled by the applicant before the appeal can be considered by this Court.
9. The courts have held that the omission to file a certified copy of the decree or order is a fatal procedural defect that can lead to the dismissal of the appeal. I align myself with the sentiments espoused in Abraham Lenauia Lenkeu V Charles Katekeyo Nkaru [2016] eKLR (R. Nyakundi, J) that:
“…there is no dispute that both under the constitution and statute the court is clothed with appellate jurisdiction. In exercise of that jurisdiction the same constitution and statute provides for due process of the law. It is upon fulfillment of any condition precedent to the exercise of jurisdiction by a party the court’s jurisdiction is invoked. The condition precedent to be fulfilled by the applicant in this case was to comply with Order 42 rule 1 (2) and Rule 32 of the Civil Procedure Rules. The validity of the appeal is to be entertained when adjudication jurisdiction has been determined. … On the fact of it the writ of notice of motion was inappropriate as a procedure without accompanying memorandum and decree appealed from for this court to entertain the appeal.”
10. The respondents have cited the case of Chege V Suleiman, [1988] eKLR in which the Learned Judges of Appeal further stated as follows:
“This is not a procedural but a jurisdictional point. Those holdings were founded on a proper interpretation of section 66 of the Civil Procedure Act which confers a right of appeal from the High Court to this Court from “decrees and orders of the High Court”. And those holdings were predicated on the fact that since the appeal could only lie against a decree or order, no competent appeal could be brought unless those decrees or orders were formally extracted as the basis of the appeal.”
11. In the application before this Court, the applicant has attached a memorandum of appeal without a certified copy of the order, decree or even the ruling of the Court that they seek to appeal from. Since the appeal is incompetent, no application towards the appeal can be maintained.
Disposition
12. Accordingly, the application is struck out with costs to the 1st respondents.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 5TH DAY OF JULY 2024.
F. MUGAMBI
JUDGE