Nms v Smk

ii. Leave to appeal the directions dated 11th August, 2025 by the trial court, permitting the application to strike out the interrogatories/notice to admit. iii. Certification that the issues raised are substantial points of law of constitutional importance affecting the best interests of the children and the system as a whole, requiring the empanelment of a three-judge bench for hearing and determination. iv. That if leave to appeal is not granted, the High Court to exercise its supervisory/judicial review jurisdiction to call up the lower court record for revision/setting aside of the order. 4. The Respondent opposed the application and filed a replying affidavit. 5. Both parties filed submissions that I have duly considered together with the authorities relied on. The Applicant’s case 6. The Applicant contends that the trial Court erred in failing to give reasons when issuing the directions and failed to deal with filed objections. 7. The Applicant accused the respondent’s counsel of sharp practice and claims that he is prejudiced by the directions because he is representing himself. He argues that unless a stay is granted, his constitutional rights and the best interests of the children are at risk. 8. The Applicant requested that the Court issue the certification, arguing that the issues of the duty to provide reasons, the right to discovery, and the protection of self-representing litigants are of public importance and should be decided at a bench level. 9. He sums up that the directions are not in the best interest of the children. 10. The Applicant submitted two other applications, dated 30th September, 2025 and a further one dated 8th December, 2025, raising issues related to the prayers mentioned above. No new issues were introduced except for the prayer to strike out the Respondent’s affidavit and submissions. The Respondent’s case 11. The Respondent challenged the averments and contended that the application is unmerited. 12. According to the Respondent, the application is a tactic designed to exert pressure on the trial Court. Regarding the prayer for stay, the Respondent argued that it would infringe on their right to access justice and cause delays. 13. The Respondent also contested the prayer for the empanelment of a bench and further stated that their response and submissions were filed within the designated timeframe. Analysis and determination 14. The issues for determination are as follows; i. Whether the respondent’s replying affidavit and submissions should be struck out; ii. Whether the directions issued by the trial court that are the subject of the miscellaneous application are appealable orders and whether leave to appeal is required and should be granted; iii. Whether an order of stay of proceedings should issue; iv. Whether the issues in dispute warrant the empanelment of a bench. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3737/eng@2026-03-09 2

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Whether the respondent’s response and submissions should be struck out; 15. The Applicant argues that the replying affidavit should be struck out because the deponent was not physically present in Nairobi, rendering the jurat invalid. However, the Applicant did not provide any evidence to support this claim. The affidavit has been signed, dated, and commissioned before a commissioner of oaths. 16. The Applicant has also ostensibly tried to introduce interrogatories to an application filed by him, and that was pending determination, which amounts to a fishing expedition. 17. On the submissions, the Respondent was granted 14 days to file and serve the submissions upon service of the Further Affidavit. The submissions were filed on 27th October, 2025. There is no inordinate delay, and the same are duly considered. Whether the directions issued by the trial court that are the subject of the miscellaneous application are appealable orders, and whether leave to appeal is required and should be granted; 18. Section 75 (1) of the Civil Procedure Act as read together with Order 43 Rule (1) of the Civil Procedure Rules expressly provides for the orders from which appeals lie as a matter of right and those from which appeals would lie only with leave of the court making the order sought to be challenged on appeal or the court to which the appeal would lie if leave was granted. 19. When an appeal is not a matter of right, obtaining leave is mandatory; it serves as a jurisdictional prerequisite. Failing to secure leave renders the appeal incompetent, and the court lacks the jurisdiction to hear it. 20. The question is whether the directions which were given are an order which is appealable. Under the Civil Procedure Act, “order” means the formal expression of any decision of a Court that is not a decree, and includes a nisi. 21. Interrogatories serve as discovery tools in litigation governed by Section 22 of the Civil Procedure Act. The Court has the discretion, either on its own motion or upon application by a party, to issue orders concerning the delivery and response to interrogatories, subject to prescribed conditions and limitations. 22. Under Order 11 Rule 3 (2) of the Civil Procedure Rules, the Court may, at a case conference, deal with interlocutory applications and therefore leave was not required to file an application to strike out interrogatories. 23. In this case, it is crucial to note that no formal order was issued permitting an oral application to strike out the applicant’s interrogatories. The provided directions were guidance on the process at hand and did not constitute final orders affecting the parties’ substantive rights. Therefore, they should not be interpreted as a definitive ruling on the issue of interrogatories. Instead, the directive was intended to guide the parties so that the Respondent seeking to have the interrogatories struck out was required to file a formal application, thereby allowing a determination on its merits. 24. The administration of justice requires that any issue impacting the substantive rights of the parties involved must receive a fair hearing and determination on its merits. Applications are a procedural mechanism for seeking orders from the court. Resolving interlocutory matters before the hearing is crucial, as the Civil Procedure Rules expect, and doing so benefits all parties involved. 25. From the context of the directions provided, it sufficiently encompassed the Applicant, ensuring that he gets a formal opportunity to respond to the application (to strike out) once filed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3737/eng@2026-03-09 3

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26. My conclusion is that the directions given by the trial Court directing that the Respondent file a formal application did not constitute final orders affecting the parties’ substantive rights. The directions outlined the procedural framework for the parties, specifying that the Respondent seeking to have the interrogatories struck out must file a formal application to ensure that the prayer sought can be evaluated on its merits. 27. Upon examining the case, it is clear that the Applicant has not demonstrated any prejudice resulting from the Court’s directives. Additionally, there are no violations of constitutional rights present in this matter or from the Children’s Court Case. The Applicant has had ample opportunity to articulate his case, even while representing himself. It is worth noting that the trial Court’s directions were intended specifically to facilitate a fair trial. 28. The directions do not constitute a formal order that is appealable; as such, no leave is granted. 29. There is no justification for staying the proceedings based on the above determination. The issue of recusal is also not among the issues to be determined by this court in this ruling. 30. Additionally, after careful consideration, no novel issues arose from this matter that would necessitate the empanelment of a bench as contemplated by Article 165 (4) of the Constitution. 31. The best interests of the children will be served with an expeditious hearing and determination of the Children’s Case No. E3XX of 2023. 32. The application dated 19th August, 2025 is not merited and is dismissed. Each party to bear its own costs. 33. Given the above findings, the applications dated 30th September, 2025 and 8th December, 2025 are hereby marked as spent. Similarly, no order as to costs is made. The Misc. File is closed. 34. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ON THIS 9TH DAY OF MARCH, 2026. ………………………. HON. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3737/eng@2026-03-09 4

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