Villacare Management Limited v Kengen Retirement Benefits Scheme

ought to be filed outright whether or not the subject matter under appeal is that which requires leave or not as this notice is a jurisdictional prerequisite. 4. I find that the Applicant has misinterpreted the holding of the Supreme Court above in its submissions because that decision was primarily concerned with timelines, that is, filing a Notice of Appeal out of time and then seeking to backdate it. The principle from the decision is that one cannot file a document out of time and then ask for time to be extended retrospectively to validate it. This is fundamentally different from the issue of leave. The Supreme Court did not hold that a Notice of Appeal filed before obtaining leave is an incurable illegality but rather, it is the foundational document that must be filed first to properly invoke the appellate process. Thus, the dicta in Salat(supra), when read together with Rule 77(4), confirms that the Notice of Appeal comes first. It is therefore my finding that no leave of court was required for the Respondent to file its Notice of Appeal. 5. Turning to the merits of the application, the parties agree that the statutory foundation for seeking leave to appeal is provided under inter alia section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules which highlight the orders where an appeal lies as of right and states that any other order that is not listed therein would require the leave of the court before such an appeal is lodged. In this case, the Plaintiffs are desirous of appealing against an order striking out the Respondent’s motion titled “Chamber Summons (Memorandum of Appeal)” which is not one of the orders where an appeal would lie as of right and therefore leave is a prerequisite before an appeal is filed. Order 43 Rule 1(3) provides that such leave ought to be sought within 14 days from the date of such an order. The Ruling was delivered on 13th May 2025 and the Respondent filed its application on 27th May 2025, meaning that the leave to appeal was sought within the statutory timeline. 6. On whether to grant or decline such an application, the Court of Appeal in Bandali t/a Shimoni Enterprises v Wills [1991] KECA 8 (KLR) held as follows: Mr Juma referred us to Sango Bay Estates Ltd v Dresdner Bank AG [1971] EA 17 at 20 in which Spry V P said: “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 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.” The reason which motivated Spry VP to give this ruling was the wording of the corresponding Uganda section 77(1) of the Uganda Civil Procedure Act. This differs in one respect from our section 75(1) because the words ‘and from no other orders’ do not appear in our section and the Vice President felt that that negative provision (although para (h) was identical to the Kenya para (h)had the effect that the earlier case of Gurbacan Singh Kalsi v Yowani Ekori [1958] EA 456 was wrongly decided, because in the earlier case it had been assumed that leave to appeal would be granted automatically. The quotation above shows us that this is not so and that the applicants must show that there are grounds of appeal which merit serious consideration; if it is a matter of discretion, a stronger case is required. 7. From the above, it is clear that the applicant seeking leave has to demonstrate that it has arguable grounds of appeal. In my view, I find that the Respondent has shown prima facie grounds of appeal that merit serious judicial consideration. The Applicant's Preliminary Objection succeeded based on inter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3953/eng@2026-03-19 2

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alia the ruling in Nyangweso v Barasa & 2 others [2023] KEHC 19281 (KLR) and the Respondent's proposed appeal challenges the correctness of that decision, and importantly, the reasoning behind it. 8. The Respondent also raises a fundamental question of statutory interpretation of whether Order 49 Rule 7(2) of the Rules create a statutory right of appeal to a judge from a Deputy Registrar's decision. This court held in the ruling that an appeal does not lie, relying on Nyangweso(supra) whereas Order 49 Rule 7(2) states that “An appeal from a decision of the registrar under the Orders referred to in subrule (1) shall be to a judge in chambers” This is not a trivial point as it potentially raises a direct conflict between a specific provision of the Rules and the persuasive decision in Nyangweso(supra). The question of which prevails is clearly an arguable point that merits the attention of the Court of Appeal. 9. The Respondent also raises the question of whether striking out the appeal based on the title "Chamber Summons (Memorandum of Appeal)" was proper, especially in light of Article 159(2)(d) of the Constitution, which mandates courts to administer justice without undue regard to procedural technicalities. This ground is arguable because the document contained the word "Memorandum of Appeal," signaling the party's intention. The question is whether a hybrid title, which could be an error in drafting, goes to the substance of the court's jurisdiction or is merely a technical defect that can be ignored. I find that this issue is of general public importance because it affects how courts treat documents filed by litigants, especially self-represented ones, in the future and the Court of Appeal's guidance on this point would be valuable. 10. The Respondent correctly points out that this court treated Nyangweso(supra) as a binding decision from the Court of Appeal and yet this decision was from this court by Musyoka J. While it is a persuasive authority, it is not binding on another High Court judge in the same way a Court of Appeal decision would be. If this court struck out the appeal based solely on a misunderstanding of the binding nature of that decision, then that is a legal error that warrants correction. 11. In sum, I find that the above arguments are not fanciful but substantive legal questions that require serious judicial consideration. Further, the fact that the appeal touches on the rights of a retirement benefits scheme to recover a significant sum, of Kshs. 166 million adds to the weight of the application, as it highlights the practical importance of getting the legal question right. I therefore exercise discretion and grant the Respondent leave to appeal against the ruling and order of this court dated 13th May 2025 with costs being in the cause. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MARCH 2026 ............................................................................ J.W.W. MONGARE JUDGE In The Presence Of Ms. Kimani holding brief for Mr. Kimani Kiragu SC for the Respondent/Applicant. Ms. Kariuki holding brief for Mr. Gachugi for the Respondent. Amos - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3953/eng@2026-03-19 3

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