Paul Gikundi Kithinji v Lolc Kenya Microfinance Bank & 1 other

instance. It is contended that the Applicant neither sought leave orally when the ruling was delivered nor made a formal application before the trial court within the prescribed period. 5. The Respondents relied on the decision in Agriculture Equipment Ltd v Ambani & Another [2020] KEHC 1420 (KLR) for the proposition that an application for leave to appeal under Section 75 of the Civil Procedure Act and Order 43 must first be made before the court that issued the impugned order. 6. The Court directed that the Preliminary Objection be heard first as its determination could potentially dispose of the entire application. The Preliminary Objection 7. The law on Preliminary Objections is well settled. A Preliminary Objection must raise a pure point of law which, if argued successfully, may dispose of the proceedings without the need for further factual inquiry. The classic statement of the principle is found in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA stated: “ A preliminary objection is like what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.” 8. The issue that arises for determination is whether the Applicant was required to obtain leave before appealing against the ruling of the trial court, and if so, whether the failure to seek such leave from the trial court renders the present application incompetent. 9. The starting point is Section 75 of the Civil Procedure Act, which provides for orders from which an appeal lies as of right and those from which an appeal may only be preferred with leave of the court. The relevant provision is supplemented by Order 43 of the Civil Procedure Rules, which specifies the orders appealable as of right. 10. Order 43 Rule 1(u) expressly provides that an appeal shall lie as of right from: “ an order under Order 40 (temporary injunctions).” 8. The ruling delivered by the learned trial magistrate on 25th June 2026 arose from an application for a temporary injunction under Order 40 of the Civil Procedure Rules. The effect of the ruling was to decline the injunctive relief sought by the Applicant. 9. It follows that the Applicant’s intended appeal falls squarely within the category of appeals contemplated under Order 43 Rule 1(u). The Applicant therefore did not require leave to appeal in the first place. 10. The prayer seeking leave to appeal is consequently misconceived. The Applicant appears to have proceeded on the erroneous assumption that every interlocutory order requires leave before an appeal may be lodged. That is not the position in law. The Civil Procedure Rules expressly distinguish between orders appealable as of right and those requiring leave. 11. Having reached that conclusion, the Court finds that the prayer for leave to appeal is unnecessary and cannot be granted. 12. The Respondents further argued that, assuming leave was required, the Applicant ought to have sought such leave from the trial court in accordance with Order 43 Rule 3 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13165/eng@2026-07-16 2

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13. Order 43 Rule 3 provides that: “ An application for leave to appeal under section 75 of the Act shall in the first instance be made orally at the time when the order is made or a formal application may be made within fourteen days from the date of such order.” 17. The purpose of this provision is to ensure that the court which made the impugned order first considers whether the circumstances justify granting leave to appeal. It is not intended to confer jurisdiction where none exists or to permit a party to circumvent the appellate procedure established by law. 18. In the present case, however, the Court has already found that leave was not required because the order complained of was appealable as of right under Order 43 Rule 1(u). Consequently, the question whether leave ought to have been sought from the trial court does not strictly arise. 19. Nevertheless, to the extent that the Applicant sought leave as a matter of caution, the proper procedure would ordinarily have been to approach the trial court first. The Applicant cannot invoke the jurisdiction of this Court under the guise of seeking leave where the law either grants an automatic right of appeal or requires leave to originate from the subordinate court. 20. The Preliminary Objection therefore succeeds to the extent that the prayer for leave to appeal is incompetent and misconceived. 21. Although the finding above substantially disposes of the application, the Court considers it appropriate to address the prayer for stay of execution. 22. The jurisdiction of this Court to grant stay of execution pending appeal is derived from Order 42 Rule 6 of the Civil Procedure Rules. The Applicant must demonstrate, among other things, that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been provided. 23. However, before considering those requirements, the Court must first determine whether there exists an order capable of being stayed. In the present matter, the impugned ruling did not grant any positive order against the Applicant. The trial court merely dismissed the Applicant’s application for a temporary injunction. The consequence of that ruling was that the court declined to restrain the Respondents from proceeding with the actions complained of. 24. The law is settled that a negative order, which merely dismisses an application and does not direct any party to perform a positive act, is generally incapable of execution and therefore incapable of being stayed. 25. In Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR 63, the Court of Appeal held that: “ The order for costs was not capable of execution and nothing was arising out of that order that could be stayed.” 27. Similarly, in Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020] eKLR, the Court of Appeal reiterated that where the effect of an order is merely to dismiss an application, there is nothing capable of execution and consequently nothing upon which a stay can operate. 28. In the present case, the order sought to be stayed is the dismissal of an injunction application. There is no positive command requiring the Applicant to do anything. The Court therefore finds that there is no executable order capable of being stayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13165/eng@2026-07-16 3

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29. The prayer for stay of execution must therefore fail independently of the issue of leave to appeal. 30. Accordingly, the Court finds that the Notice of Motion dated 7th July 2026 is without merit and is liable to dismissal. 31. In the circumstances, the Court makes the following orders: i. The Preliminary Objection raised by the Respondents is upheld to the extent stated in this ruling. ii. The Applicant’s Notice of Motion dated 7th July 2026 is hereby dismissed. iii. The prayer for stay of execution is declined, the impugned order being a negative order incapable of execution. iv. Costs of the application are awarded to the Respondents. DATED, SIGNED AND DELIVERED AT MERU THIS 16 DAY OF JULY 2026. DK RONO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13165/eng@2026-07-16 4

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