Country Farms Limited v Dieto & 2 others (Miscellaneous Case E011 of 2023) [2023] KEELRC 3476 (KLR)
The bottom line
#A Kenyan court stopped the auction of attached property and ordered a fresh hearing, confirming that objection claims must be decided on their merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to grant leave to appeal
The court had no jurisdiction to grant leave in the first instance because an appeal from an order under Order 22 Rule 51(1) lies only with leave, and leave must first be sought from the court making the order under Order 43(2) and (3)
Order 43(1) lists orders appealable as of right, which under section 75(1)(h) include only Order 22 rules 25, 57, 61(3) and 73. A dismissal of objection proceedings under Order 22 Rule 51(1) is not among them, so leave was mandatory under Order 43(2). Order 43(3) requires such leave to be sought in the first instance from the court making the order, orally at the time or within fourteen days. The applicant never sought leave from the magistrate, only a stay, so the High Court lacked jurisdiction to entertain the leave prayer.
Whether the applicant met the threshold for stay of execution
Stay of attachment was granted and the lower court ruling set aside because the magistrate dismissed the objection proceedings on representation grounds without considering merits, focusing on technicalities contrary to Article 159
The magistrate dismissed the objection proceedings as frivolous and collusion solely because the objector was represented by the same advocate as the judgment debtors, without considering the merits of the claim to the attached property. The court held that conflict of interest cannot be a basis for defeating objection proceedings, and that under Order 22 Rules 51 and 52 the court was obliged to consider the objection on its merits. Dismissal without merits was a failure to exercise judicial power and undue regard to technicalities.
Legal principles established
#- Where an order is not appealable as of right under Order 43(1), leave to appeal must first be obtained from the court that made the order, and failure to do so goes to jurisdiction
- Lack of jurisdiction cannot be cured by Article 159(2)(d) on procedural technicalities
Court orders
#- 1.Set aside the ruling by Hon. T. M. Olando in Civil Case No. 194 of 2018 dated 11th October 2023
- 2.Return the application dated 15th September 2023 to the magistrate's court for determination of the objection application on merit
- 3.Stay of the attachment of the property of Country Farms Limited in execution of the judgment debt pending hearing and determination on merits of the objection application dated 15th September 2023
- 4.No order as to costs
- On appeal from
- Magistrate's Court at Bungoma
- Civil Case No. 194 of 2018
- Jurisdiction invoked
- Sections 75 and 79G of the Civil Procedure Act; Order 43 of the Civil Procedure (Amendment) Rules 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Country Farms Limited v Dieto & 2 others (Miscellaneous Case E011 of 2023) [2023] KEELRC 3476 (KLR)", Case Analysis (2023). Notice of Motion dated 14th November 2023 (arising from Bungoma CMCC No. 194 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3476/eng@2023-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.