Diamond Trust Bank Kenya Ltd v Omondi alias Francisca Omosi & another (Civil Appeal E034 of 2023) [2026] KECA 911 (KLR)
The bottom line
#The Court of Appeal struck out Diamond Trust Bank's appeal because it never got the required permission (leave) to appeal a garnishee order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal to the Court of Appeal was competent in the absence of leave to appeal, given that garnishee orders under Order 23 (other than those under Order 23 Rule 7) are appealable only with leave
Key legal issues
#Whether garnishee orders under Order 23 of the Civil Procedure Rules are appealable as of right or only with leave
Only garnishee orders concerning other third persons under Order 23 Rule 7 are appealable as of right; all other garnishee orders under Order 23 require leave to appeal.
Section 75(1) of the Civil Procedure Act permits appeals as of right from enumerated orders and from any other order under the Civil Procedure Rules only with leave. Order 43 rule 1(1) lists orders appealable as of right, expressly including only garnishee orders under Order 23 Rule 7; Order 43 rule 1(2) requires leave for all other orders. By implication, garnishee orders absolute under Order 23 Rules 4 and 5 are appealable only with leave.
Whether failure to obtain the requisite leave is a fatal, jurisdictional defect that cannot be cured or waived
Yes. Failure to obtain leave deprives the appellate court of jurisdiction and renders the appeal incompetent; the court must strike it out.
Relying on its prior decisions in Nyutu Agrovet and National Land Commission v Tom Ojienda, and on Peter Nyaga Muvake, the court held that leave is a substantive requirement going to the root of jurisdiction, not a technicality. Without leave there can be no valid appeal, and once jurisdiction is found wanting the court must 'down its tools' and cannot consider the merits.
Legal principles established
#- Where an appeal lies only with leave under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, absence of leave is a jurisdictional bar and the appellate court cannot entertain the appeal; garnishee orders under Order 23 other than those under Order 23 Rule 7 require leave to appeal.
- Leave to appeal from orders not appealable as of right must be sought in the first instance from the court that made the order, orally at the time of the order or within fourteen days.
Court orders
#- 1.The appeal is struck out for want of leave to appeal
- 2.Costs of the appeal to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 75(1) and (2) of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules; Rules 88(2)(a) and 89(1)(i) of the Court of Appeal Rules - competence of a second appeal requiring leave
Relief refused
#Determination of the substantive grounds of appeal on the interpretation of Order 23 (whether a garnishee order nisi attaches only credit balances as at the date of service)
The appeal was incompetent for want of the mandatory leave to appeal, which is a jurisdictional prerequisite; the court could not entertain the merits
Costs
The appeal was struck out for want of leave with costs to the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The requirement for leave to appeal where the law so prescribes is not a mere procedural technicality, but a jurisdictional prerequisite.
The inference here being that, for all other garnishee orders under Order 23, leave to appeal is a necessary prerequisite.
Accordingly, since the requisite leave to appeal was not obtained, the appeal before us is incompetent and, given the well-established edict that a court must down its tools the moment it finds that it lacks jurisdiction, we reach the conclusion that this appeal is incompetent and is hereby struck out for want of leave with costs to the 1st Respondent.
Issues in the judgment
#The court's analysis of Order 43 Rule 1 refers to leave procedure under 'Order 43 Rule 1 (3)', and elsewhere counsel's submissions refer to 'Order 43 rule 1 of the Civil Procedure Code' - a provision and nomenclature that differ from the cited Order 43 Rule 2 relied on by the 1st Respondent; the judgment does not resolve this discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Trust Bank Kenya Ltd v Omondi alias Francisca Omosi & another (Civil Appeal E034 of 2023) [2026] KECA 911 (KLR)", Case Analysis (2026). Court of Appeal, Mombasa (Civil Appeal) - appeal from Malindi High Court appeal against Kilifi SPMCC No. 157 of 2017 garnishee proceedings. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/911/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.