Josephat Muchiri Muiruri & Market Power International Limited v Yusuf Abdi Adan [2015] KEHC 525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL  NO.  715  OF 2006

JOSEPHAT  MUCHIRI MUIRURI………………..........1ST APPELLANT

MARKET  POWER INTERNATIONAL LIMITED…….2ND APPELLANT

VERSUS

YUSUF ABDI ADAN ……………………………..............RESPONDENT

RULING

Before me for determination is the application dated 6th November 2011  by the respondent in the main  appeal Yusuf Abdi Adan brought  under the provisions of Sections 1A,1B and 3A of the Civil Procedure Act  Order 43 Rule 2  of the Civil Procedure  Rules s and Order 42  Rule 35  (2)  of the Civil Procedure Rules.

The application seeks the following orders:-

That this appeal be dismissed and or struck out.

That the respondent does have costs of this appeal.

That the respondent have costs of this application.

That this appeal is against dismissal of a preliminary objection lodged without leave to appeal having been obtained from the court below.

This appeal, lodged on 22nd May 2007 has not set down  for hearing as yet.

The appellants filed grounds of opposition to the application which was not supported by any affidavit.  They instead filed submissions on       15th November 2011 and a declaration of non-appearance on the hearing of the application, seeking only to rely on their filed submissions. The respondent/applicant also filed written submissions on 2nd November 2011.

On 2nd February  2012  Honourable Onyancha  J had  directed that the parties urge  the application orally but when they appeared before  me on 16th June  2015  through their  advocates  on record, they agreed to rely on their filed written submissions  and this court  is now tasked to decide on the merits of the application.

In his written submissions the applicant  contends  that since this  appeal is an offshoot  of a ruling  based on a preliminary objection, not by way of chamber summons or Notice of Motion, leave of  court to appeal was mandatorily   required  but that  instead, the  appellants  filed the  appeal herein without such leave.  He relied on Civil appeal No. 105/1998 Kenya Commercial Bank Ltd v Esipeya  where the  Court of Appeal held  that leave  to appeal is necessary.  The applicant also relied on Vasamani and Company Ltd v Lab Construction  Company Ltd  CA 224/1996 where the  Court of Appeal held that a ruling resulting  from a preliminary  objection is only appealable  with leave  under Section  75 of the  Civil Procedure Act.  Counsel for  the applicant maintained  that the record  of appeal does not  show that  any leave to appeal was  sought or obtained after the ruling  and before filing of the appeal hence  the appeal should be  struck out with costs.  The applicant made no submissions on dismissal of the appeal for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.

The appellant’s submissions dated 14th November 2011 relies on the grounds of opposition filed on 30th August 2011.  They maintain  that the  applicant  had not demonstrated  that any leave was  required before the filing of this appeal.  In their view, Order  43 Rule 2 of the Civil Procedure Rules provides  that “ an  appeal shall  lie with the leave  of the court  from any other  order made under  these Rules”.  In their  view, the preliminary  objection  was not based on any provisions  of the Civil Procedure Rules and  the ruling  thereof  was therefore  not “an order made  under  these Rules”.  In the appellant’s view, the preliminary  objection was clearly based on  Section 4(2) of Cap 22 which is the Limitation of Actions Act and therefore  the application to strike out the  appeal was misconceived  as no such leave to appeal was required.  They also  maintained  that their  appeal was  arguable  and that  the application was based on procedural  technicalities to defeat  an otherwise arguable  appeal, which application, in  their  view, has no place in the present  Article 159(2) of the  Constitution.

In the view of the appellant, the question of whether leave was or was not required is a question of procedure and a technicality which ought not to be entertained in view of the constitutional provisions.

On the issue of dismissal of the appeal for want of prosecution, the appellants submitted that only the Registrar could invoke such provisions of Order 42 Rule 35 (2) of the Civil procedure Rules hence the application was misconceived and that the applicant could only invoke Order 42 Rule 35(1).  They  also submitted that they had  compiled  and filed and served  a record of  appeal and  that no hearing  date  could be fixed  before directions are  given.

The appellants urged this court to dismiss the application by the respondent on both limbs.

I have carefully considered   the application, grounds of opposition and submissions by both parties.  The only issue for determination is whether the application has any merit on both limbs.

The applicant maintains that the appeal is incompetent as it was filed without leave of court and that no steps have been taken to have the appeal disposed of.

On the other hand, the appellants/respondents contend that no leave  of  court  to appeal  was required  as the preliminary objection  was  not based  on any provisions  of the Civil Procedure  Rules hence  the ruling  by the trial magistrate  was not “an  order  made under  these Rules” as per Order  43 Rule 2 of the Civil Procedure Rules.  In addition, that  directions had not been given  hence the appeal cannot be  dismissed  for want of prosecution  in accordance with   Order 42  Rule 35  (2) of the Civil Procedure Rule ( which  they consider  erroneously cited).

Examining the record, vide a plaint  dated 10th March 2005 and filed in  court on  11th March 2005, the respondent  herein Yusuf Abdi  Adan sued  the appellants  Josephat  Muchiri Muiruri and Market Power International  Ltd claiming for  special  damages  arising from alleged negligence  by the appellants  as a result of which  their motor  vehicle KAK 229N collided with his motor vehicle registration No.  KAN 245R thereby damaging it.  He therefore   claimed for costs of repair, assessors charges, towing charges and loss of user.  The cause of action  allegedly arose on 29th  December 2001.

In their  defence  dated 30th June  2005, the appellants herein  denied  the respondent/ applicant’s  claim and in paragraph 6 pleaded  that the suit based  on tort  was statute  barred  by virtue  of Section 4(2)  of the Limitation of Actions Act Cap 22  Laws of Kenya.  They reserved the right to raise a preliminary point of law for determination and or apply to have the suit struck out.

On 30th June 2006 the appellants filed Notice of Preliminary Objection  seeking to have the  suit struck  out for  being statute  barred  and in a ruling delivered on 19th September  2006  K.L.Kandet (Mr) Resident  Magistrate, he dismissed the preliminary  objection.  The thrust  of that ruling  was that the appellants  had through their insurance company-Heritage Insurance  Company Limited  undertaken, during  out of court negotiations not to plead limitation should the negotiations fail and that the  insurance company’s undertaking  bound the  appellants  insured and that the suit   need not have  been filed against  the insurance  company which was  privy to the negotiations and made an  undertaking on behalf of the owners of  motor vehicle.  The trial magistrate found that the appellants were estopped from pleading limitation in the suit in view of their insurers undertaking not to plead limitation and dismissed the preliminary objection.

It is that ruling by the learned trial magistrate that provoked this appeal filed on 18th October 2006 and amended on 11th May 2007.

With the above background in mind,  the question for determination in the present application by the respondent is was the leave of court requisite for filing of this appeal?

The appellants have in my view, raised a  novel point  of law that  the order  dismissing  the preliminary objection  was not  made under  the Rules  made under Civil Procedure Act, but based on  Section 4(2) of the Limitation of Actions  Act.  That necessitates  some deep  examination  of that provision of Order 43 Rule 2  of the Civil Procedure  Rules that “ An appeal  shall lie with  the leave of the court from any other order made  under  these Rules”.

According to the appellants, the preliminary objection in the court below was not made based on any provisions of the Civil Procedure Rules or Act and that in any case, this application seeks to strike out the appeal based on procedural technicalities abhorred by Article 159(2) (d) of the Constitution.

First, it must  be appreciated   that this court  has the jurisdiction to hear  and  determine  appeals from tribunals, subordinate  courts  or bodies  as prescribed  by Article 165 of the Constitution and other Acts  of  Parliament.  Nonetheless a party who desires  to file an appeal to this court has a duty to demonstrate  under what  law that  right  to be heard  on an appeal  is conferred or if not, show that  leave has been granted  to lodge  the appeal before  the court.

The above position was espoused by the Court of Appeal in Nyutu Agrovet  Ltd V Airtel Networks Limited (2015) e KLR.  The court in the above decision also held that leave to appeal does not constitute the right to appeal.  The right must    precede leave. The Court of Appeal  in the above  Nyutu Agrovet Ltd case (supra) cited with  approval the decision by Ringera J ( as he  then was ) in Nova Chemicals  Ltd  vs Alcon International  Ltd HC MISC APPL 1124/2002 where the learned  judge 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”.The Court of Appeal further stated that:

“…….and even Section 75 of the Civil Procedure  Act, giving  this court  jurisdiction to hear  appeals from the High court, should be  read  to mean  that these provisions  of law also  confer the right of appeal on the  litigants.  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.  To me, even if  jurisdiction and the right of appeal may be referred to  side  by side  or in the same breath, the two terms  do not  mean one  and the same thing.  It is not in dispute that jurisdiction as well as the right of appeal must be conferred by law, not by implication or inference.  If the power and authority of or for a court    to entertain a matter (jurisdiction) is not conferred by law then that court has no business   to entertain the matter.  (see owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1.

I have carefully examined the Limitation  of Actions Act  and I find no provision  that confers upon the  appellant the  ” right  of appeal” under that Act, where proceedings before the court  emanate  from that  Act  as was in this case.  On the other hand, I find that the proceedings before the subordinate court, subject   matter of this appeal, were and are civil proceedings governed by the Civil Procedure Act and Rules made there under.  The court, in  hearing the matter before court, was  exercising  its civil jurisdiction in determining  a dispute of a civil nature and the order  made on the preliminary objection was a  formal expression  of the decision  of the  court ( see  Section 2  of the  Civil Procedure Act).

In addition, Section 5 of the Civil procedure  Act  on jurisdiction of  the courts is clear that any court  shall, subject  to the provisions  herein  contained have jurisdiction  to try  all suits of which its  cognizance  is either  expressly or impliedly  barred.”

What  I gather  from the  above  provisions  and the definition of  Rules  to mean “Rules  and Forms  made by the Rules Committee to regulate procedure  of court” is that any  issue  arising  in the  course of  proceedings  requiring  a determination by the court, and where  the court does pronounce  itself, then that  pronouncement  is made by the court  in the exercise of  its  civil jurisdiction  under the Civil Procedure Act  and  the Rules made  there under.

There is no dispute that the appeal arises from the preliminary objection ruling made by Kandet Mr (RM).  It  is also  not disputed  that Section 75  of the Civil Procedure Act  specifies the orders from which  parties  have a right of appeal, without leave, which implies  that in certain other orders a party  would require  leave of the  court to file  an appeal.  The order dismissing the preliminary objection raised by the appellants is not listed as one which is appealable   as a matter of right.  That being the case, leave was necessary as it is not exempt from the requirement of leave under Order 43 Rule 6 of the Civil Procedure Rules.  It is  my  humble  view that that Order  was an order made  under  the  Civil Procedure Rules and without leave, then this court is  deprived  of  jurisdiction to hear and  determine the appeal as filed.  In  my view, it is  that leave  which confers  this court with the jurisdiction to hear the  appeal and with  respect to the appellant’s counsel’s submissions, jurisdictional issues  are  not matters that fall in the category of procedural technicalities.  They go to  the root of the matter for  without  jurisdiction, this court  or any  other court  would do no one more thing  than down  its tools.(see Owners  of Motor Vessels “Lilian S”) (supra).

The Court of Appeal in CA Nairobi 86 of 2015 Peter Nyaga Murake v Joseph Mutunga, referring to failure to seek leave to appeal from an order stated:

“ without leave  of the High Court, the applicant was not entitled  to give Notice of Appeal where, as in this case, leave  to appeal is necessary by dint of Section 75  of the Civil Procedure  Act  and Order 43  of the Civil Procedure Rules, the procurement of leave  to appeal is  sine  qua non  to the lodging of the Notice  of Appeal.  Without leave, there can be no valid Notice of Appeal.  and without a valid Notice of Appeal, the jurisdiction of this court is not properly invoked.  In short, an application for stay in an intended appeal against an order which is appealable only with leave which has not been sought and obtained is dead in the water”.

The court further agrees with the  Court of Appeal decision in the  case of Kenya Commercial Bank Ltd  v Tony Manaseh Esipiya CA  105/98 whose  facts  are in parimateria  with the  instant  case.  In that appeal, which arose  from the decision  of the High Court on a preliminary objection at the trial that  the plaintiff’s claim  was statute  barred  as was pleaded in paragraph 12 of the  defence, the learned Judge dismissed the  preliminary objection and it is against that  decision  that the defendant  appealed  to the Court of Appeal without  first seeking leave of court to  appeal and arguing differently that they  believed the learned Judge’s  ruling gave rise to a preliminary decree  from which an appeal  lies  to the  Court of Appeal as of right.  The respondent argued that without leave being sought and obtained, no right of appeal accrued to the appellant. The Learned Judges  of  Appeal per  Gicheru, Kwach and Shah, JAA (as they were then) unanimously struck out the appeal holding that:

“………the point taken in paragraph  12 of the defence  was that the claim  was time  barred, a clear  limitation  point, which  could have  been made  the subject of an application  under Order 6  Rule  13 of the Civil Procedure  Rules (now Order 2 Rule 15 of the Civil Procedure Rules) An order on an application under  Order  6 Rule 13 is appealable as of right  under Order  42 Rule 1 (now  Order 43  of the Civil Procedure Rule).  But having  chosen  to raise the limitation point  by way of a preliminary objection under no  particular  order under the Civil Procedure  Rules, an appeal lay to  this court  only with the leave of  the Superior  court which  was neither  sought nor  obtained”.

The Court of Appeal in the above  case also cited with approval the decision of G.R. Mandaria V Rattan Singh(1965) EA 118 where it  was  held  inter alia:

“ where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or resjudicata fails and  a suit is  permitted to proceed, no preliminary  decree arises  but only an order, the unsuccessful party has a right of  appeal with leave  and accordingly  the appeal  was incompetent  for want of leave”.

Law JA at page 124 stated:

“ The position  is, in my opinion, clear:  when a suit  is disposed of on a  preliminary point, an appeal will lie  from the decree dismissing  the suit, and  where an issue such as liability  is tried  as a preliminary issue, and  finally disposed  of at first instance, a preliminary decree  arises  from which an appeal lies; but where  a preliminary  issue alleging misjoinder, limitation, lack of jurisdiction  or res judicata  fails, no preliminary decree arises  from which  the unsuccessful party  has a right of appeal”.

I have no reason whatsoever to differ with the holdings  of the Learned Judges of the Superior Court of Appeal in the above cases as cited.  The limitation  point taken  by the appellant  herein  as a preliminary issue failed.  It matters  not that  the point of  law was  based on the Limitation  of Actions Act, for that is, indeed  the law that  limits  the period  within which  civil suits should  be instituted  with exceptions  set out in the schedule and other provisions  of the Act.  That Act (Limitation of Actions Act Cap 22 Laws of Kenya) does not confer any right of appeal to the appellant.  The appellants as the unsuccessful parties had no right to appeal except with leave.  Only leave when obtained would confer jurisdiction to this court to hear and determine the merits of this appeal.  No leave was either sought or granted. The appeal is therefore a non starter in limine.

Albeit Article 159(2) (d) of the Constitution has been invoked by the appellant arguing that the application herein is based on procedural technicalities hence it should be dismissed, I disagree.  As earlier stated, jurisdictional issues are not procedural requirements for without jurisdiction, the court acts in vain.  As was held in  Kakuta Maimai Hamisi v Peris Pesi  Tobiko &  2 Others (2013) e KLR, that:

“the right of appeal goes to jurisdiction  and is  so fundamental that  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.  We do not  consider  Article  159 (2) (d) of the Constitution  to be a panacea, nay , a general white  wash, that cures  and mends  all ills, misdeeds and defaults of litigation”.

The same  Court of Appeal in Mumo Matemu  v Trusted Society of Human Rights  Alliance  & 5 Others  CA 290 of 2012  ( five Judge Bench)  stated succinctly  thus, concerning  the issue of taking umbrage  under Article  159(2) (d) of the Constitution.

“In our  view it is a  misconception to claim, as it  has been in recent  times with increased  frequency, that  compliance  with rules of procedure is  antithetical  to Article  159 of the  Constitution and the overriding objective  principle  of Section 1A and  1 B  of the Civil Procedure  Act Cap  221 and Section  3A  and 3B of the Appellate  Jurisdiction Act (Cap 9).  Procedure  is also a hand maiden  of just determination of cases”.

In the same  breath, having already found that  jurisdiction stands on a higher  pedestal and in a more  peremptory  position  than procedural rules and that  the requirements  for leave to appeal  as was in this matter is a  jurisdictional issue, I can only reiterate  that it  goes to the very heart  of substantive   validity of court possesses and determination  and certainly  does not  run a foul  the substantive  procedure, dichotomy of Article 159 of the Constitution.

I echo  Nyarangi JA  in the case of  Owners of Motor  Vessel “ Lilian S” v Caltex Oil (K0 Ltd (1989) KLR 1 and declare that ideed-

“……….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”.

In this case, and in view of  the foregoing, the contention by the respondent/appellant  that the  application was  not supported  by an affidavit  cannot be  bought by this court  as the  application was soundly grounded on purely points of law and did  not  require  factual evidential depositions.  Consequently, I allow the respondent’s application and find the appeal herein as filed incompetent.  The same is struck out and dismissed with costs to the respondent/applicant.

Dated, signed and delivered in open court at Nairobi this 23rd day of September 2015.

R.E. ABURILI

JUDGE

23/9/2015

Coram Honourable R.E. Aburili J

C.A. Adline

Mr Okao holding brief for Pramod Patel for the respondent.

Mr Wambua   for appellant.

Court-   Ruling read and delivered in open court as scheduled.

Ruling to be typed.

R.E. ABURILI

JUDGE

23. 9.2015