INTRODUCTION
The respondent in this matter by way of a Notice of Preliminary Objection has moved this court to strike out the appeal on the grounds that:-
The appellant has brought this appeal seeking to reverse the decision of the lower court striking out his suit without the necessary leave under Order 43 Rule 1 (3) of the Civil Procedure Rules.
The appellant ought to have sought and obtained leave before the filing of the appeal.
The parties agreed to have the matter disposed off by way of written submissions.
The objector in his submission states that the appellant filed the suit in the lower court vide a plaint dated 17/8/2023.
In the said suit the appellant sought a permanent injunction to restrain the respondent from disposing off land parcel No. LR. NO. KISUMU/KOGONY /5164 which was held by the respondent as security of a charge valued at Kshs.19,100,000
The objector contends that following the striking out of the suit the appellant ought to have sought Leave under Order 43 Rule 1 (3) of the Civil Procedure Act prior to the filing of the appeal.
The objector further submitted that on account of that failure by the appellant this court lacks jurisdiction to entertain the appeal.
The objector’s position is that the lower court struck out the suit for want of jurisdiction thereby disposing the same with finality.
The objector further contends that appeal is incompetent for violating the express provisions of Section 75 (1) of the Civil Procedure Act which provides :-
(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.
The objector submitted that a plain reading of this provision of the law leaves no doubt that the order that the appellant has appealed against is not one of the matters expressly stated under Section 75 (1) of the Civil Procedure Act thus Leave ought to have been sought before the filing of the appeal.
The objector maintains that an order for the striking out of a suit for want of jurisdiction is not one of those orders that a party enjoys an express right of appeal.
In the objectors view the appellant ought to have sought leave under Order 43 (2).
The objector’s submission is that the requirement for leave is mandatory thus the appellants appeal is incompetent.
The objector went further to submit that after the order for striking out of the suit being issued it was incumbent upon the appellant to seek leave before the lower court pursuant to the provisions of Order 43 (3) which provides:-
“ (3) An application for leave 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 when the order is made or within fourteen days from the date of such order.”
According to the objector even after the filing of the objection the appellant has not made any effort to seek leave in the lower court.
The objector contended that given the nature of the order appealed against the failure by the appellant to seek leave rendered the appeal incompetent and fit for striking out.
The objector relied on the case of Direct line Insurance Co. Ltd Vs. Onyango Civil Appeal No. E345 of 2022 [2022] eKLR where the court held:-
“It is then clear that under Order 43 (2) an appeal shall lie with leave of the court from any other order made under the rules. This means that unless the order sought to be appealed against falls under the orders sought to be appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred. (see Mutungi J in Serephen Nyasani Menge vs Rispah Onsase (2018)eKLR . Order 42 rule 6 under which applications for stay of execution fall is not one of the orders mentioned in Order 43 (1) where the appeal lies as of right. The appellants ought to have sought leave before filing this appeal. In Stephen Omondi Juma -vs Sprocer Awuor Rabote (2022) eKLR Aburili J was faced with a similar issue as the issue before me. She cited a Court of Appeal decision and stated that:
"As was emphatically stated in Nyutu Agrovet Ltd -vs- Airtel Networks Ltd (2015) eKLR a right of appeal only lies where the law specifically provides for such right to accrue and where no such right is automatic, then a party seeking to appeal must first obtain leave of court. Further, that the right of appeal is conferred by statute and cannot be inferred. It follows that where a right of appeal does not lie automatically, a party can only invoke the provisions of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules to seek and obtain leave from the lower court to appeal to this court. Leave to appeal in the instant case did not lie as a matter of right"
The none compliance with that aspect of the Civil Procedure is what the objector says should inform this courts decision to find that due to the omission by the appellant to seek leave, this appeal is grossly incompetent and ought to be struck out ex debito justice.
The appellant on his part has strenuously opposed the preliminary objection.
According to the appellant the appeal is challenging the whole decision by the lower court which the appellant says determined the suit with finality.
The view taken by the appellant is that the dismissal of the suit for want of jurisdiction is a substantive decision thus there would be no need for one to seek leave to appeal against such a decision.
The appellant in support of his position has cited the case of City Council of Nairobi Vs. Sato Properties Ltd & 3 Others (2009) where the court held that an appeal can be preferred as of right without requiring Leave when substantive issue of law such as jurisdiction is involved.
In the said decision the court held:-
“ Generally there is no right to immediate appeal from an interlocutory order :- A party may never the less immediately appeal from an interlocutory order when it affects a substantial right of the party. A substantial right is a legal right affecting or involving a matter of substance as distinguished from matters of form ; a right naturally affecting those interests which (a party) is entitled to have preserved and protected by law: a material right- The burden of showing an interlocutory order affects a substantial right and thus immediately appealable is on the appellant and this court will not construct arguments for or find support for an appellant’s right of appeal”
The appellant / respondent urges this court to find that the lower court having struck out the suit on the basis that it had no jurisdictions, the court’s ruling determined the right of the parties to the suit.
The appellant further submitted that the pronouncement by the court constituted a decree which from a reading of Section 2 and Section 65 (b) of the Civil Procedure Rules of the Civil Procedure Act an appeal would lie as a matter of right.
In the appellant’s view therefore the preliminary objection is improperly taken thus this court should dismiss the same.
It is further urged for the appellant that Order 43 (3) expressly provides that it does not apply to an adjudication that conclusively determines the rights of parties with regard to any of the matters in controversy.
ANALYSIS AND DETERMINATION.
The preliminary objection relates to the issue of Leave to appeal under Order 43 of the Civil Procedure Rules and Section 75 of the Civil Procedure Act.
The issue raised is purely a matter of law and from the pleadings it is the kind of matter that would not attract a protracted discourse between the parties.
The court is simply called upon to determine whether a party whose suit is struck for want of jurisdiction on the part of the court to hear and determine the matter requires leave before the filing of an appeal challenge such a decision.
The issue therefore is a prove matter of law thus meets the test set out under Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distribution Ltd [1969] 1 EA 696 where the court of Appeal held:-
"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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has; to be ascertained or if what is sought is the exercise of judicial discretion."
By clear implication of the pleadings the issue that emerges is capable of disposing the whole subject matter.
If this court was to determine that the appellant required Leave to appeal before initiating the appeal , it would automatically culminate in a decision of this court striking out the appeal thus disposing of the subject matter.
I have noted that even though the order that the appellant is seeking to appeal against is not included among the orders set out under Section 75 (1) of the Civil Procedure Act, the issue of jurisdiction once determined affects the right of the party to access justice.
It would therefore follow that the immediate right of the appellant under Articles 48 of the Constitution to access justice is thrust to the fore.
Once a court determines that it has no jurisdiction to entertain a matter, the party seeking the protection of his rights in the affected suit would be entitled to seek a review of the propriety of that decision by way of appeal or even its legality.
To deny the appellant access to the appellate would be a drastic course that this court should resort to in the clearest case.
The impugned ruling reads in part:
“ To the extent that the value of the suit property exceeds the pecuniary jurisdiction of the court, this suit squarely within the jurisdiction of the High Court and not the Chief magistrate’s Court. That being the case, I am constrained to find that I have no jurisdiction to entertain not only the application dated 17 th August 2023 but also the entire suit. I must down tools. Consequently, the application cannot be granted. The entire suit is struck out plus the application with costs to the defendant.”
The ruling did not only deny the appellant the right to the equal protection of the law but also shut out the appellant from the stream of justice.
All that the appellant had sought for in his application of 17 th August 2023 were interim orders to protect the suit property LR No. KISUMU/KOGONY /5164 from sale by public auction.
The appellant had sought within the body of the said application to have the property valued to determine its current market value.
The learned Honorable court determined that the value that was discernible on the face of the pleadings was way beyond the courts pecuniary jurisdiction. As a result the entire suit was struck out.
The appellant in answer to this objection has submitted that the order dismissing the suit determined substantive issues affecting the rights of parties. This court agrees with that submission.
A decision that leads to the exclusion of a party from the justice system is a determination of a substantive nature for it affects not only the parties right to access court under Article 48 of the Constitution but also the right to a fair hearing under Article 50 of the Constitution.
In issue in the suit was the right to property and the protection of that right under the law.
The appellant having had his suit struck out was within the law to prefer an appeal without necessarily seeking leave the court.
The effect of the decision by the lower court went beyond the prayers sought in this application.
A reading of the ruling under challenge reveals that the issue of jurisdiction was taken up by the court suo moto. The appellant was not heard on the critical issue of jurisdiction.
The appellant did not need to seek leave before filing the appeal considering the substantive nature of the decision.
The appeal is allowed with costs to the appellant.
It is so ordered.
The respondent in this matter by way of a Notice of Preliminary Objection has moved this court to strike out the appeal on the grounds that:-
The appellant has brought this appeal seeking to reverse the decision of the lower court striking out his suit without the necessary leave under Order 43 Rule 1 (3) of the Civil Procedure Rules.
The appellant ought to have sought and obtained leave before the filing of the appeal.
The parties agreed to have the matter disposed off by way of written submissions.
The objector in his submission states that the appellant filed the suit in the lower court vide a plaint dated 17/8/2023.
In the said suit the appellant sought a permanent injunction to restrain the respondent from disposing off land parcel No. LR. NO. KISUMU/KOGONY /5164 which was held by the respondent as security of a charge valued at Kshs.19,100,000
The objector contends that following the striking out of the suit the appellant ought to have sought Leave under Order 43 Rule 1 (3) of the Civil Procedure Act prior to the filing of the appeal.
The objector further submitted that on account of that failure by the appellant this court lacks jurisdiction to entertain the appeal.
The objector’s position is that the lower court struck out the suit for want of jurisdiction thereby disposing the same with finality.
The objector further contends that appeal is incompetent for violating the express provisions of Section 75 (1) of the Civil Procedure Act which provides :-
(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.
The objector submitted that a plain reading of this provision of the law leaves no doubt that the order that the appellant has appealed against is not one of the matters expressly stated under Section 75 (1) of the Civil Procedure Act thus Leave ought to have been sought before the filing of the appeal.
The objector maintains that an order for the striking out of a suit for want of jurisdiction is not one of those orders that a party enjoys an express right of appeal.
In the objectors view the appellant ought to have sought leave under Order 43 (2).
The objector’s submission is that the requirement for leave is mandatory thus the appellants appeal is incompetent.
The objector went further to submit that after the order for striking out of the suit being issued it was incumbent upon the appellant to seek leave before the lower court pursuant to the provisions of Order 43 (3) which provides:-
“ (3) An application for leave 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 when the order is made or within fourteen days from the date of such order.”
According to the objector even after the filing of the objection the appellant has not made any effort to seek leave in the lower court.
The objector contended that given the nature of the order appealed against the failure by the appellant to seek leave rendered the appeal incompetent and fit for striking out.
The objector relied on the case of Direct line Insurance Co. Ltd Vs. Onyango Civil Appeal No. E345 of 2022 [2022] eKLR where the court held:-
“It is then clear that under Order 43 (2) an appeal shall lie with leave of the court from any other order made under the rules. This means that unless the order sought to be appealed against falls under the orders sought to be appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred. (see Mutungi J in Serephen Nyasani Menge vs Rispah Onsase (2018)eKLR . Order 42 rule 6 under which applications for stay of execution fall is not one of the orders mentioned in Order 43 (1) where the appeal lies as of right. The appellants ought to have sought leave before filing this appeal. In Stephen Omondi Juma -vs Sprocer Awuor Rabote (2022) eKLR Aburili J was faced with a similar issue as the issue before me. She cited a Court of Appeal decision and stated that:
"As was emphatically stated in Nyutu Agrovet Ltd -vs- Airtel Networks Ltd (2015) eKLR a right of appeal only lies where the law specifically provides for such right to accrue and where no such right is automatic, then a party seeking to appeal must first obtain leave of court. Further, that the right of appeal is conferred by statute and cannot be inferred. It follows that where a right of appeal does not lie automatically, a party can only invoke the provisions of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules to seek and obtain leave from the lower court to appeal to this court. Leave to appeal in the instant case did not lie as a matter of right"
The none compliance with that aspect of the Civil Procedure is what the objector says should inform this courts decision to find that due to the omission by the appellant to seek leave, this appeal is grossly incompetent and ought to be struck out ex debito justice.
The appellant on his part has strenuously opposed the preliminary objection.
According to the appellant the appeal is challenging the whole decision by the lower court which the appellant says determined the suit with finality.
The view taken by the appellant is that the dismissal of the suit for want of jurisdiction is a substantive decision thus there would be no need for one to seek leave to appeal against such a decision.
The appellant in support of his position has cited the case of City Council of Nairobi Vs. Sato Properties Ltd & 3 Others (2009) where the court held that an appeal can be preferred as of right without requiring Leave when substantive issue of law such as jurisdiction is involved.
In the said decision the court held:-
“ Generally there is no right to immediate appeal from an interlocutory order :- A party may never the less immediately appeal from an interlocutory order when it affects a substantial right of the party. A substantial right is a legal right affecting or involving a matter of substance as distinguished from matters of form ; a right naturally affecting those interests which (a party) is entitled to have preserved and protected by law: a material right- The burden of showing an interlocutory order affects a substantial right and thus immediately appealable is on the appellant and this court will not construct arguments for or find support for an appellant’s right of appeal”
The appellant / respondent urges this court to find that the lower court having struck out the suit on the basis that it had no jurisdictions, the court’s ruling determined the right of the parties to the suit.
The appellant further submitted that the pronouncement by the court constituted a decree which from a reading of Section 2 and Section 65 (b) of the Civil Procedure Rules of the Civil Procedure Act an appeal would lie as a matter of right.
In the appellant’s view therefore the preliminary objection is improperly taken thus this court should dismiss the same.
It is further urged for the appellant that Order 43 (3) expressly provides that it does not apply to an adjudication that conclusively determines the rights of parties with regard to any of the matters in controversy.
ANALYSIS AND DETERMINATION.
The preliminary objection relates to the issue of Leave to appeal under Order 43 of the Civil Procedure Rules and Section 75 of the Civil Procedure Act.
The issue raised is purely a matter of law and from the pleadings it is the kind of matter that would not attract a protracted discourse between the parties.
The court is simply called upon to determine whether a party whose suit is struck for want of jurisdiction on the part of the court to hear and determine the matter requires leave before the filing of an appeal challenge such a decision.
The issue therefore is a prove matter of law thus meets the test set out under Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distribution Ltd [1969] 1 EA 696 where the court of Appeal held:-
"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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has; to be ascertained or if what is sought is the exercise of judicial discretion."
By clear implication of the pleadings the issue that emerges is capable of disposing the whole subject matter.
If this court was to determine that the appellant required Leave to appeal before initiating the appeal , it would automatically culminate in a decision of this court striking out the appeal thus disposing of the subject matter.
I have noted that even though the order that the appellant is seeking to appeal against is not included among the orders set out under Section 75 (1) of the Civil Procedure Act, the issue of jurisdiction once determined affects the right of the party to access justice.
It would therefore follow that the immediate right of the appellant under Articles 48 of the Constitution to access justice is thrust to the fore.
Once a court determines that it has no jurisdiction to entertain a matter, the party seeking the protection of his rights in the affected suit would be entitled to seek a review of the propriety of that decision by way of appeal or even its legality.
To deny the appellant access to the appellate would be a drastic course that this court should resort to in the clearest case.
The impugned ruling reads in part:
“ To the extent that the value of the suit property exceeds the pecuniary jurisdiction of the court, this suit squarely within the jurisdiction of the High Court and not the Chief magistrate’s Court. That being the case, I am constrained to find that I have no jurisdiction to entertain not only the application dated 17 th August 2023 but also the entire suit. I must down tools. Consequently, the application cannot be granted. The entire suit is struck out plus the application with costs to the defendant.”
The ruling did not only deny the appellant the right to the equal protection of the law but also shut out the appellant from the stream of justice.
All that the appellant had sought for in his application of 17 th August 2023 were interim orders to protect the suit property LR No. KISUMU/KOGONY /5164 from sale by public auction.
The appellant had sought within the body of the said application to have the property valued to determine its current market value.
The learned Honorable court determined that the value that was discernible on the face of the pleadings was way beyond the courts pecuniary jurisdiction. As a result the entire suit was struck out.
The appellant in answer to this objection has submitted that the order dismissing the suit determined substantive issues affecting the rights of parties. This court agrees with that submission.
A decision that leads to the exclusion of a party from the justice system is a determination of a substantive nature for it affects not only the parties right to access court under Article 48 of the Constitution but also the right to a fair hearing under Article 50 of the Constitution.
In issue in the suit was the right to property and the protection of that right under the law.
The appellant having had his suit struck out was within the law to prefer an appeal without necessarily seeking leave the court.
The effect of the decision by the lower court went beyond the prayers sought in this application.
A reading of the ruling under challenge reveals that the issue of jurisdiction was taken up by the court suo moto. The appellant was not heard on the critical issue of jurisdiction.
The appellant did not need to seek leave before filing the appeal considering the substantive nature of the decision.
The appeal is allowed with costs to the appellant.
It is so ordered.