1.Vide a Notice of Motion Application dated 12th May 2022, the Appellant/Applicant sought for Orders against the Respondent as follows;a.That the Respondent be restrained from proceeding with the execution and subdivision and/or transfer of land parcel No.Loc 11/muchungucha/25, on the strength of the orders of the Lower Court (per E.M. Muriuki Nyaga S.r.m) dated 12th May 2022, in Murang’a L.D.T Case No. 131 of 2006, pending hearing of this application inter parties or until the hearing and determination of this Appeal or until further orders of this Court whichever is the last.b.That the execution of the lower court orders in Murang’a L.D.T Case No. 131 of 2006, issued on 12th May 2022, bestayed perpetually as they are in serious violation of law and the established tenets of legal jurisprudence pending hearing of this Appeal.c.The costs of this application be borne by the Respondent
2.The Application is premised on the grounds set out on the face of the said Application and the Supporting Affidavit of Samuel Mwangi Wawerusworn on 12th May 2022.It is the Applicant’s contention that the Respondent’s father filed a case at the Land Disputes Tribunal being Case No 131 of 2006, against his father (now deceased). That the Elders sitting at the Tribunal who are not well versed in law made some obnoxious orders relating to land parcel No. LOC 11/Muchungucha/25, which is the subject of these proceedings. That the said Elders had no power under the defunct Land Disputes Tribunal Act, to adjudicate on matters relating to title to land. That the Award was therefore void abinitio to the extent of making LDT Case No. 131 of 2016, a nullity.
3.That the lower court proceeded to substitute the Respondent herein with his deceased father erroneously. Further that the lower court went ahead on 12th May 2022, to Order that land parcel No. LOC 11/Muchungucha/25, be subdivided and transferred, despite the existence of a High Court Order in Murang’a Succession Cause No. 100 of 2014. Further, that the Applicant will suffer grave injustice if the land for which he is an administrator was to be shared and transferred pursuant to the Lower Court Order and therefore the lower Court Order should be stayed permanently.The Application is opposed by the Respondent via his Replying Affidavit sworn on 23rd May, 2022. It is the Respondent’s averment that the Appeal filed on 13th May 2022, is incompetent and bad in law as no leave was sought and granted by the trial court. That he is advised by his advocate that the orders sought are unsustainable as there is No Appeal against the Decree of the Court, but only against execution. That the lower Court is just exercising its mandate of executing the Decree arising from the Land Disputes Tribunal’s Award that stand unchallenged to date.
4.That he is further advised by his advocate that the Applicant neither appealed nor sought Judicial Review of the Award and Judgment of the Court and hence his lamentations are late in the day. That an appeal cannot be based on a strong feeling against a court decision. That it must be shown in what way the Award and Decree have been successfully challenged.
5.That the instant appeal is incompetent for want of leave, and there is no reason to grant a stay of execution. That the orders sought in the application are untenable in that they seek stay in perpetuity, which is alien to our law. That the applicant has failed to comply with the requirements of Order 42 Rule 6 of the Civil Procedure Rules.In addition to filing the Replying Affidavit, the Respondent filed a Notice of Preliminary Objection dated 23rd May 2022.In the said Notice of Preliminary Objection, the Respondent opposed the Appeal on grounds that;1.This appeal is not competent as it was filed without prior leave to do so. Whereas what was sought was execution of the Decree and an appeal is not filed as of right under Order 43 Rule 1(i) (k) of the Civil Procedure Rules.2.The Appellant did not seek for leave of the Court under Order 43 rule (2) and (3) of the Civil Procedure Rules.3.The Notice of Motion dated 12th May 2022, being based on the said incompetent appeal is similarly bad in law and does not lie and should be struck off with costs.
6.The Notice of Motion Application dated 12th May 2022, and the Notice of Preliminary Objection dated 23rd May 2022, were canvassed together by way written submissions.
7.The Appellant/Applicant filed his written submissions dated 28th June 2022, through the Law Firm of T. M. Njoroge Advocates. The Applicant in his submissions reiterated his averments in the Application and opposed the Preliminary Objection. That the Orders, sought in the application dated 3rd May 2021, filed in the lower court were substantive Orders, which did not require leave to Appeal.
8.The Respondent on the other hand filed his written submissions dated 9th June 2022, through the Law Firm of J.N. Mbuthia & Co Advocates.The Court has carefully read and considered the pleadings filed, the rival written submissions, authorities cited and the relevant provisions of the law and finds that the issues for determination are;1.Whether the Notice of Preliminary Objection dated 23rd May 2022 is merited.2.Whether the Notice of Motion application dated 12th May 2022 is merited
i. Whether the Preliminary Objection dated 23rd May 2022 is merited.
9.The Respondent contends that the instant appeal is a non-starter as no leave was sought to file the Appeal and hence, it should be struck out. On his part, the Appellant/Applicant asserts that the Respondent’s assertions on lack of leave to file the Appeal are mere technicalities, meant to defeat substantive justice and that since the Respondent has not filed an Application to strike out the Appeal, and therefore the objection is not merited.The legal position on Preliminary Objection was well established in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
The Court further held:
10.For a Preliminary Objection to succeed, the same must raise pure points of law that it would not be difficult to ascertain and there must be no proper contests of facts.The Purpose of Preliminary Objection, was well stated by the Supreme Court in Civil Application No. 36 of 2014;- Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 others  eKLR, where the Court held;
11.Having been well guided as above, this Court shall move to determine whether the Notice of Preliminary Objection herein is merited or not.Section 75(1) of the Civil Procedure Act provides for the Orders against which an Appeal would lie as of right and/or with the leave of the Court. It provides that: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;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.
12.Section 75 of the Civil Procedure Act must be read together with the provisions of Order 43 Rule 1 of the Civil Procedure Rules which sets out the Orders and rules in respect of which appeals would lie as of right. Orders 43 Rule 1(2) provides that an appeal shall lie with the leave of the Court from any other Orders made under the Rules.
13.In the present Appeal, the Appellant/Applicant seeks to appeal against an Order of the trial Court allowing the subdivision of LOC. 11/Muchungucha/25, into 2 equal portions between Samuel Mwangi Waweru AND Joseph Mubia Wandeto.The Order was as a result of an application dated 3rd May 2021, that was made under the provisions of Section 98 of the Civil Procedure Act, Cap 21 and which does not fall under the Orders which are appealable as of right, as per the provisions of Order 43 Rule 1 of the Civil Procedure Rules, 2010.
14.As such, the Appellant did not have an automatic right to appeal against the Order delivered on 12th May 2022. He was required to obtain leave of the Court as stated under Section 75(1) of the Civil Procedure Act and Order 43 Rule 1 (3) of the Civil Procedure Rules, before an Appeal could be preferred.Order 43 Rule 1(3) of the Civil Procedure Rules states as follows-
15.The above requirement is couched in mandatory terms. In the case of Serephen Nyasani Menge Vs Rispah Onsase  eKLR, Mutungi J stated as follows in regard to the necessity for parties to seek leave of the Court before filing appeals-
16.Further, the Court of Appeal in Lucy Wanjiku Nyaga vs. James Mwaniki Munyi & another  eKLR, while dealing with Article 159(2) (d) of the Constitution, cited the case of Peter Nyaga Murake vs. Joseph Mutunga (2015) eKLR, where the Court of Appeal stated:
17.The same position was taken in the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others  eKLR, where the Court stated as follows;-
18.Based on the above, it is evident that the Appeal herein is not guaranteed as a matter of right under Order 43 Rule 1 of the Civil Procedure Rules, and the Appellant/Applicant was required to seek leave before filing the said Appeal. This Court has perused the Court record and the pleadings herein and has seen no such application for leave made either orally and/or formally by the Appellant. This Court is of the considered view that the said leave goes to the heart or the root of this appeal and the Jurisdiction of this Court to hear the instant appeal.
19.In the case of Nyutu Agrovet Ltd vs. Airtel Networks Ltd  eKLR, the Court of Appeal held that where there was no automatic right of Appeal stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, then the Appellate Court has no jurisdiction to hear and determine an Appeal, unless leave of the court from which the order was made is sought and obtained.Further, in Kakuta Maimai Hamisi vs. Peris Pesi Tobiko & 2 Others  eKLR, the Court of Appeal observed:
20.This Court is bound by the aforementioned decisions of the Court of Appeal and it finds and holds that lack of the leave to Appeal, where such leave is required by law, renders the entire Appeal void ab initio.Therefore, this Court finds and holds that the Notice of Preliminary Objection dated 23rd May 2022, raises a pure point of law and the said Preliminary Objection is found merited and the same is upheld.
(ii) Whether the Notice of Motion application dated 12th May 2022 is merited
21.Having found above that the Jurisdiction of this Court to deal with the instant appeal is disabled for want of leave to file an appeal, this Court will not engage in an academic exercise, by determining the Notice of Motion Application dated 12th May 2022, on merit.
22.Having analysed the available evidence, the Court finds and holds that the Preliminary Objection dated 23rd May 2022, is meritous and proceeds to uphold the same entirely. Having found that this Court has no jurisdiction to entertain the instant suit, it follows that the Court cannot therefore entertain any application and/or any other proceedings in this matter. Thereafter, the Court will resist itself from determining the suit herein and proceeds to strike it out entirely with costs to the Respondent.In a nutshell, the Court upholds the Notice of Preliminary Objection dated 23rd May 2022, entirely and further finds and holds that it has no jurisdiction to deal with the instant Application and the entire suit.
23.Consequently, the suit herein is struck out entirely with costs to the Respondent. The Court makes no order in regard to the Notice of Motion Application dated 12th May 2022, as the entire suit has been struck out.It is so ordered.