John Ritho Kanogo & 2 others v Joseph Ngugi & another [2017] KECA 579 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed without required permission, confirming that skipping the leave step kills an appeal before it starts.
What this practically means
#Executive summary
#Key legal issues
#Whether leave was required to appeal against the High Court's dismissal of a preliminary objection
The order dismissing the preliminary objection was not among the orders listed in section 75(a) to (h) of the Civil Procedure Act that are appealable as of right; therefore the appeal required leave, which was never sought or obtained, rendering the appeal incompetent.
Section 66 of the Civil Procedure Act allows appeals to the Court of Appeal from decrees and orders of the High Court, but section 75 restricts appeals as of right to specified orders, with all other orders appealable only with leave. The order appealed from, predicated on Article 34 of the Constitution, was not among the specified orders. Since leave was mandatory and was not obtained, no right of appeal ever crystallised and the appeal was a nullity.
The purpose of the leave requirement
Leave serves as a filter to prevent frivolous, dilatory or abusive interlocutory appeals, and is normally refused where the order is not final or conclusive and the issues can be addressed at trial.
The court explained that the object of leave is to enable the court to determine whether an intended appeal is frivolous, would frustrate the dispensation of justice, cause unreasonable delay, or abuse court process. Leave may be denied where the order sought to be appealed is not final or conclusive and parties will have an opportunity during trial to address the issues raised by the order.
The definition of a preliminary objection
The court adopted the classic definition of a preliminary objection as a pure point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit, and raised on the assumption that all facts pleaded by the other side are correct.
In framing the nature of the preliminary objection that had been dismissed by the High Court, the court restated the authoritative formulation from Mukisa Biscuit Co. v West End Industries, including Newbold P's clarification that a preliminary objection cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought. This was contextual reasoning supporting the analysis of appealability.
Legal principles established
#- Where an order of the High Court is not appealable as of right under section 75 of the Civil Procedure Act, leave is required, and the failure to obtain leave renders the appeal incompetent because leave is what crystallises the right of appeal.
- It is the grant of leave that confers the right of appeal on a party appealing from an order that is not appealable as of right.
Court orders
#- 1.The applicants' application by notice of motion dated 19th June 2015 is allowed
- 2.Civil Appeal No. 135 of 2015 is struck out
- 3.The respondents (appellants) shall pay the costs of the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 589 of 2012
- Jurisdiction invoked
- Sections 66 and 75 of the Civil Procedure Act (appeal from orders of the High Court; appeals lying with leave where not appealable as of right)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ritho Kanogo & 2 others v Joseph Ngugi & another [2017] KECA 579 (KLR)", Case Analysis (2017). Civil Application No. 135 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/579/eng@2017-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.