Jtg Enterprises Limited v China Gezhouba Group & 1 other
The bottom line
#Kenya's Court of Appeal confirmed you can file a notice of appeal before getting leave, and courts rarely strike out appeals while leave applications are pending.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed under Order 42 rule 6 orders requires prior leave and fails if leave is not first obtained
A notice of appeal need not await leave; leave may be sought within 14 days after the impugned order, even post-filing, and the pending application for leave bars striking out the appeal
Section 75(1)(h) of the Civil Procedure Act and Order 43 rule 1 allow appeals as of right from listed orders, and with leave from other orders. Rule 1(3) contemplates leave being sought after an appeal is filed, within 14 days. Rule 77(4) of the Court of Appeal Rules and the Supreme Court's Salat decision confirm that certification or leave need not precede the notice of appeal. The 1st respondent's leave application was filed within time and remains pending before the trial court.
Whether the Court could dismiss Civil Application No. E418 of 2023 and the stay orders made in it
The prayer failed because the application was not before the Court, it targeted a different ruling, and dismissal would amount to the Court sitting on appeal on its own decision
The applicant sought dismissal of a separate application in a different appeal predicated on the main judgment of 22nd August 2023, not the ruling of 23rd August 2023 under challenge here. The bench hearing this motion was not seized of that application, and the stay orders preserve a separate appeal. The prayer was misconceived and the Court criticised the omnibus, confusing drafting of the motion.
Standard governing striking out of appeals
Striking out in limine on technical grounds is draconian and reserved for the most hopeless disputes; the present application did not meet that threshold
The Court reiterated that its jurisdiction disfavours striking out suits or appeals at the threshold on technical grounds. Such power must be used sparingly. The present application was premature because it did not holistically consider the leave regime and the pending leave application. Proper drafting of pleadings was emphasised as going to the kernel of the administration of justice.
Legal principles established
#- Where an appeal lies only with leave, a party need not obtain leave before lodging a notice of appeal; the notice of appeal is a jurisdictional pre-requisite and need only be filed within time.
- Order 43 rule 1(3) of the Civil Procedure Rules permits a party to seek leave to appeal within 14 days after filing an appeal; leave need not be sought first before the appeal is filed.
- The power to strike out a suit or appeal in limine is draconian and harsh, and should be exercised sparingly and only in the most hopeless cases.
- A court cannot dismiss an application or appeal that is not properly before it; doing so would amount to sitting on appeal on its own decision.
Court orders
#- 1.The Notice of Motion dated 12th September 2023 is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court
- HCCC No. E649 of 2021
- Jurisdiction invoked
- Inherent appellate jurisdiction over applications in pending appeals (Court of Appeal Rules, rule 77; Civil Procedure Act, section 75; Civil Procedure Rules Orders 42 and 43)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lubulellah & Associates v Gilbi Construction Company Limited (Environment and Land Miscellaneous Application E157 of 2023) [2025] KEELC 4996 (KLR)[2025] KEELC 4996 (KLR)3 Jul 2025
- John Esuguru Emuria v Elijah Kiptanui Sambu & 2 others[2025] KECA 1033 (KLR)5 Jun 2025applied
- Ndegwa v Asila & another (Environment & Land Case 9 of 2024) [2025] KEELC 132 (KLR)[2025] KEELC 132 (KLR)23 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Jtg Enterprises Limited v China Gezhouba Group & 1 other", Case Analysis (2024). Notice of Motion dated 12th September 2023 (Civil Appeal E418 of 2023 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/596/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.