Samaki Industries Limited v Gilfilian Technical Services Limited

4. The application was supported by the Supporting Affidavit sworn by Joseph Schwartzman, the Applicant reiterating the contents on the grounds on the face of the application. 5. In response to the application, Mr. Salim Verjee swore a Replying Affidavit on behalf of the Plaintiff company dated 12.02.2025. It was stated that the application was an abuse of the court process and meant to further delay the Plaintiff from enjoying the fruits of its judgment. It was further stated that the Honourable Judge in his ruling properly cited the Applicant to appear in court for cross examination. 6. It was further stated that even though the intended appeal has no chances of success, if this court was to grant leave as prayed, the same should be granted on condition that the be a deposit of security by way of a bankers cheque or cash deposited in an escrow account in the name of the Plaintiff and the counsel for the Applicant. 7. It was directed that the application be canvassed by way of written submissions. Both parties complied by filing their rival submissions. The parties were also given an opportunity to highlight their submissions before this court, though virtually. Analysis and Determination 8. I have carefully considered the application, the response, the submissions, the authorities cited as well as the law and the only issue for determination is whether application is merited. Corollary to this is the issue of costs. 9. The impugned ruling dated 27/01/2025 ordered the Applicant being the only known Director of the Defendant company as at the time of procuring services from the Plaintiff, be cross-examined for purposes of settling the judgment debt in favour of the Plaintiff. The Applicant seeks to appeal against this ruling. 10. Section 75 of the Civil Procedure Act provides as follows; (1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted— (a) an order superseding an arbitration where the award has not been completed within the period allowed by the court; (b) an order on an award stated in the form of a special case; (c) an order modifying or correcting an award; Page 2 of 5

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(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; (e) an order filing or refusing to file an award in an arbitration without the intervention of the court; (f) an order under section 64; (g) an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree; (h) any order made under rules from which an appeal is expressly allowed by rules. (2) No appeal shall lie from any order passed in appeal under this section. 11. Further, Order 43, rule 1(3) of the Civil Procedure Rules provides as hereunder; (3) An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order. 12. In this case, the appeal is against an order that the Applicant be cross-examined in court for purposes of effecting execution of the Decree of the court in favour of the Plaintiff. It is not one of the orders where an appeal is of right as provided for under section 75 as stated herein above. 13. I do appreciate the fact that the ruling was uploaded in the CTS hence the Applicant had no opportunity to orally address the court on leave to appeal. Further, this application seeking leave to appeal was filed on 29/01/2025, only 2 days after the ruling was uploaded. I find there was no delay in filing the same and the application was filed within the statutory timelines. 14. On whether the application for leave to appeal has merits, in the case of Bandali t/a Shimoni Enterprises v Wills [1991] eKLR, the court quoting the holding in Sango Bay Estates Ltd v Dresdner Bank AG [1971] EA 17 held as follows; “I turn to the application itself which can, I think, be disposed of very briefly. As I understand it, leave to appeal from an order in civil proceedings will normally be Page 3 of 5

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granted where prima facie it appears that there are grounds of appeal which merit serious judicial considerations but where, as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out.” 15. The Applicant submitted that the intended appeal raised fundamental issues of law. He relied on the fact that the Defendant Company was non-existent having been dissolved and the Applicant had resigned form the directorship of the company long before the dissolution of the company. Without going to the merits or demerits of the issues raised by the Applicant, I find that prima facie it appeared that the ground of appeal raises serious judicial considerations, hence merited for grant of leave to appeal. 16. The Applicant did not seek for stay of proceedings before this court. The proceedings before this court shall proceed as scheduled until further orders/ directions from this court or the Court of Appeal. 17. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. I therefore direct that each party shall bear own costs. 18. The upshot of the foregoing is that the court renders itself as hereunder: a) The application dated 29/01/2025 is allowed on the following terms; i. Leave to appeal is hereby granted as prayed ii. The above leave does not automatically stay the Ruling of the court hence the cross-examination of the Applicant, Mr. Joseph Schwartzman to proceed as scheduled on 12.03.2026 unless stay orders are issued by the Court of Appeal. iii. The Notice of appeal and Letter Requesting for Proceedings dated 28/01/2025 be deemed as properly filed b) Each party to bear own costs. It is so ordered. Ruling delivered at Mombasa on this 18th day of December, 2025 through Microsoft Teams. In the presence of; Page 4 of 5

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Mr. Ochieng Advocate for the Applicant Mr. Salim p.i.p for the Plaintiff/ Respondent Ms. Salwa, Court Assistant NB: Typed ruling released to the parties via CTS on 5 th January, 2026. The delay was occasioned by the bereavement of the trial Judge. Page 5 of 5

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