Commercial & Tax Division v Sandton International Limited T/A Pam Golding Properties

Act as read together with Order 43 of the Civil Procedure Rules. ii. That the appeal and the appellant's application dated 11th February 2026 are frivolous, vexatious and an abuse of the process of the Court. 2. The Appellant opposed the Objection and filed written submissions dated 29th May 2026. 3. The background of the matter is that by a ruling delivered on 29th January 2026, Hon. Mary W. Njagi, Senior Principal Magistrate, in Milimani Commercial Suit No. E639 of 2023, dismissed the Appellant's application dated 25th September 2025, which had sought, inter alia: a temporary injunction restraining the Respondent and the Interested Party from proclaiming, attaching, taking possession of or selling the Appellant's goods pursuant to warrants of attachment dated 29th July 2025; an order directing the Executive Officer to verify the authenticity of the warrants; contempt proceedings against the Respondent and Interested Party; and a permanent injunction restraining execution pursuant to the impugned warrants. 4. Aggrieved by that decision, the Appellant lodged the present appeal. 5. The Respondent, by the present Preliminary Objection, contends that the present appeal is incompetent since no leave 2|Page

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was obtained by the Appellant from the trial Court prior to the filing of the same. 6. According to the Respondent, the application before the subordinate court was brought under Sections 1A, 3, 3A and 63 of the Civil Procedure Act, Section 5 of the Judicature Act and Order 51 of the Civil Procedure Rules, and that none of those provisions fall within the orders appealable as of right under Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules. 7. Citing among others, the decision in Serephen Nyasani Menge v Rispah Onsase [2018] KEELC 654 (KLR) and Elisha Ochieng Odhiambo v Washington Jakoyo Midiwo [2019] KEHC 2052 (KLR), the Respondent asserts that leave to appeal was mandatory and, having not been obtained, the appeal is incompetent. 8. The Appellant, on the other hand, argued that the application dismissed by the magistrate substantially sought injunctive relief. The Respondent maintains that the ruling amounted to a refusal of an injunction and therefore falls within Order 43 Rule 1, making the appeal competent as of right. 9. The Appellant therefore maintained that the objection is improperly founded because determination thereof inevitably requires consideration of factual matters. 3|Page

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Analysis and Determination 10. Having carefully considered the objection and the rival submissions, I find that the primary issue for determination is whether the present appeal lies as of right or requires leave of the subordinate court. 11. The law regarding preliminary objections is settled by the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. A preliminary objection must raise a pure point of law capable of disposing of the proceedings without the Court having to ascertain facts. 12. The objection herein challenges the jurisdiction of this Court on the basis that leave to appeal was not sought. Consequently, the objection satisfies the threshold of a proper preliminary objection. 13. The next issue for consideration, however, is whether the Appellant required leave. 14. Section 75(1)(h) of the Civil Procedure Act provides that an appeal shall lie as of right from any order made under rules from which an appeal is expressly allowed. 15. Order 43 Rule 1 of the Civil Procedure Rules enumerates the numerous orders appealable as of right. Included therein are orders made under Order 40 concerning temporary injunctions. 4|Page

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16. The Respondent's argument is principally that because the application dated 25th September 2025 cited Sections 1A, 3A and 63 of the Civil Procedure Act, Section 5 of the Judicature Act and Order 51 of the Civil Procedure Rules, the resulting ruling does not fall within Order 43 Rule 1. 17. I am unable to agree with that argument. 18. From the record, the Court notes that the application dated 25th September 2025 expressly sought temporary and permanent injunctive relief restraining the Respondent and Interested Party from proclaiming, attaching, taking possession of or selling the Appellant's goods. 19. Indeed, prayers 2 and 5 of that application were unequivocally framed as prayers for injunctions. 20. The ruling of 29th January 2026 determined those prayers adversely to the Appellant by dismissing the application in its entirety. 21. In the Court's view, the substance and effect of the impugned ruling was a refusal to grant injunctive relief sought by the Appellant. Such refusal falls within the category of orders contemplated under Order 40 and is appealable as of right under Order 43 Rule 1. 5|Page

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22. Accordingly, I find that the appeal was competent without leave. 23. The Respondent also contended that the appeal is frivolous, vexatious and an abuse of the Court process. The Court is, however, of the firm view that in the circumstances of the present appeal, the question of whether an appeal is frivolous or an abuse of process necessarily requires examination of the factual and legal merits of the appeal itself. Such a determination cannot be made at a preliminary stage without venturing beyond the pleadings and record. 24. For the foregoing reasons, the Respondent's Notice of Preliminary Objection dated 26th February 2026 is hereby dismissed with costs to the Appellant. 25. The appeal shall proceed to hearing on its merits. 26. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 2ND DAY OF JULY 2026 HON. MR. JUSTICE MOSES ADO Judge of the High Court 6|Page

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In the Presence of: Moses C/A .………………for the Appellant ……………for the Respondent 7|Page

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