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Court of AppealStruck OutCivil Appeal No. 187 of 1999

NIAZSONS (K) LIMITED v CHINA ROAD & BRIDGE CORPORATION (KENYA) [2000] KECA 382 (KLR)

Court of Appeal
31 March 2000
JGJ.E. GicheruALA.A. LakhaEOE. Owuor
642 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed without required leave, confirming that no conduct or agreement can create appeal rights that the law withholds.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Gicheru, Lakha and Owuor, JJ.A.) determines a threshold question the court raised of its own motion while the appeal was part-heard: whether the appellant had a right of appeal from the ruling of Onyango Otieno J dated 15 April 1999 in H.C.C.C. No. 126 of 1999. The underlying dispute arose from a subcontract under which China Road & Bridge Corporation (Kenya) sued for an injunction and damages arising from road works. Niazsons applied to stay the suit on the ground that the matter was subject to an arbitration agreement; the plaintiff took preliminary objections, which the judge heard and dismissed, without deciding the stay application, which remained pending. The Court held that, because the judge made no order granting or refusing a stay, section 75(1)(d) of the Civil Procedure Act - the only basis for an appeal as of right - had not even begun to apply. The appellant therefore had no right of appeal, only a right to appeal with leave of the superior court or, failing that, of the Court of Appeal. No leave had been sought or obtained, with the result that the Court had no jurisdiction to make any order. The appellant's alternative estoppel argument, founded on an alleged representation that an appeal lay, also failed: there can be no estoppel against the statute, and jurisdiction cannot be conferred by estoppel, consent, acquiescence or default. The Court held the appeal incompetent for want of leave, struck it out, and made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant has a right of appeal to the Court of Appeal from the decision of the superior court given on 15 April 1999.
  2. 2.Whether the appeal lies as of right under section 75(1)(d) of the Civil Procedure Act or only with leave.
  3. 3.Whether, if the appeal lies only with leave, the respondent is estopped by its course of conduct from relying on the want of leave.
  4. 4.Whether the Court has jurisdiction to make any order in the appeal where no leave has been sought or obtained.

Key legal issues

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01

Whether an appeal lies as of right from a ruling that dismisses preliminary objections to an application for stay where the stay application itself remains undecided.

Holding

No. Section 75(1)(d) of the Civil Procedure Act, the only basis for an appeal as of right, applies to orders granting or refusing a stay; since the judge ruled only on the preliminary objections and left the stay application pending, the section never applied and no appeal lay as of right - only with leave.

Reasoning

The Court examined precisely what the learned judge had decided: he determined the preliminary objections but neither dismissed nor granted the stay application, which therefore remained pending. Because section 75(1)(d) of the Civil Procedure Act is the only basis for an appeal as of right in respect of orders granting or refusing a stay, and no such order existed, the section had not even begun to apply to the facts. The appellant's remedy was an appeal with leave of the superior court or, failing that, of the Court of Appeal.

p. 2
02

Whether the Court of Appeal has jurisdiction to entertain an appeal that lies only with leave where no leave has been sought or obtained.

Holding

No. The absence of leave deprives the Court of jurisdiction; it cannot make any order in the matter, nor can it confer jurisdiction upon itself.

Reasoning

Having found that the appeal lay only with leave, the Court observed that it was not in dispute that no leave had been sought or obtained. Jurisdiction being a precondition to the exercise of judicial power, the Court held it had no jurisdiction to make any order in the matter, and stated that it was unable to confer jurisdiction upon itself to entertain an appeal which lies only with leave when no leave has been sought or obtained.

p. 2
03

Whether a party can be estopped, by conduct or a representation that an appeal lies, from relying on the statutory requirement of leave.

Holding

No. There can be no estoppel against the statute, and jurisdiction cannot be conferred by estoppel, consent, acquiescence or default.

Reasoning

Counsel for the appellant argued that the respondent's course of conduct amounted to a representation that there was a right to appeal, raising an estoppel. The Court assumed, without deciding, that a binding representation about legal relations existed, yet held that even such a representation could not cure the want of leave: an estoppel cannot run against a statute, and jurisdiction cannot be founded on estoppel, consent, acquiescence or default. The want of leave was therefore fatal.

p. 2

Legal principles established

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  • An appeal as of right under section 75(1)(d) of the Civil Procedure Act lies only from an order granting or refusing a stay; a ruling confined to preliminary objections, where the stay application remains pending, is appealable only with leave.
  • There can be no estoppel against a statute, and jurisdiction cannot be conferred by estoppel, consent, acquiescence or default.
  • An appeal that lies only with leave cannot be entertained where no leave has been sought or obtained; the Court has no jurisdiction to make any order in the matter.

Court orders

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  1. 1.The appeal is struck out as incompetent for want of leave.
  2. 2.No order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
AL
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 126 of 1999
Jurisdiction invoked
Section 75(1)(d) of the Civil Procedure Act - identified by the Court as the only basis for an appeal to lie as of right; the appeal otherwise lay only with leave of the superior court or, failing that, of the Court of Appeal, and no leave having been sought or obtained, the Court held it had no jurisdiction.

Relief refused

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A determination that the appeal lay as of right without leave

The judge made no order granting or refusing a stay, so section 75(1)(d) of the Civil Procedure Act, the only basis for an appeal as of right, never applied; the appeal lay only with leave.

p. 2

Entertainment of the appeal without leave on the strength of the respondent's alleged representation that an appeal lay

There can be no estoppel against the statute, and jurisdiction cannot be conferred by estoppel, consent, acquiescence or default.

p. 2

Any order on the merits of the intended appeal

No leave had been sought or obtained, so the Court had no jurisdiction to make any order in the matter.

p. 2

Costs

No order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For these reasons, we are constrained to hold that this appeal is incompetent for want of leave. Accordingly, it is struck out but with no order as to costs.
p. 2Disposition - appeal struck out for want of leave (final orders)
It is trite that there can be no estoppel against the statute. Nor can jurisdiction be conferred by estoppel, consent, acquiescence or default.
p. 2Estoppel cannot override a statute or confer jurisdiction
In our judgment, there is no right of appeal. The appellant, however, does have a right to appeal to this Court with leave of the superior court or failing that of this Court.
p. 2Appeal as of right versus appeal with leave
Since there is no such basis, that section has not even begun to apply to the facts of the present case.
p. 2Scope of section 75(1)(d) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NIAZSONS (K) LIMITED v CHINA ROAD & BRIDGE CORPORATION (KENYA) [2000] KECA 382 (KLR)", Case Analysis (2000). Civil Appeal No. 187 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/382/eng@2000-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.