Sanpac Limited v Stanbic Bank Limited (Civil Appeal 320 of 2018) [2023] KECA 960 (KLR)

The Court examined section 75(1) of the Civil Procedure Act together with Order 43 Rule 1, which enumerate the orders and rules from which an appeal lies as of right. Order 17 is not listed, so any decision arising from Order 17 is appealable only with leave. The appellant did not demonstrate that it obtained leave; indeed it impliedly admitted the contrary by urging that its fundamental right to be heard should defeat the leave requirement. Following its own precedents, the Court held that the right of appeal goes to jurisdiction and cannot be justified under Article 159(2)(d).

Relying on Kakuta Maimai Hamisi and Peter Nyaga Muvake, the Court affirmed that absence of statutory conferment of a right of appeal is a jurisdictional defect, not a procedural technicality curable by Article 159(2)(d). Without leave there can be no valid notice of appeal, and without a valid notice of appeal the Court's jurisdiction is not properly invoked. The exercise of discretion by the High Court in dismissing the reinstatement motion was therefore never reached.