Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022)  KEHC 15614 (KLR) (Civ) (24 November 2022) (Ruling)
Neutral citation:  KEHC 15614 (KLR)
Republic of Kenya
Civil Appeal E345 of 2022
JN Njagi, J
November 24, 2022
Directline Insurance Co. Ltd
Jacob Ogonda Onyango
1.The respondent has filed a preliminary objection dated June 8, 2022 in opposition to the appellant/applicant`s notice of motion dated May 24, 2022 on the grounds that the appellant is in this matter appealing against an order of the magistrate`s court where the appeal can only lie with the leave of the court. That no such leave was obtained before the appeal was filed.
2.The applicant did not file a response to the preliminary objection.
3.The background to the preliminary application is that the appellant/applicant filed an application before the magistrate`s court seeking for stay of execution which came up for directions on May 23, 2022 but the trial magistrate declined to grant the orders sought for stay of execution. The applicant was dissatisfied with the ruling of the trial court and filed the instant appeal. They complained that the trial court had denied the applicant the opportunity to be heard.
4.The advocates for the respondent, Nelson Kaburu & Co Advocates, submitted that there is no automatic right of appeal from order 42 rule 6 or from an order declining stay of execution.That neither is there a right of appeal from an order of directions or refusal to grant interim orders or denial of opportunity to be heard generally. That the applicant was obligated to obtain leave of the court to file an appeal but no such leave has been exhibited or alluded to.
5.The respondent relied on order 43 of the Civil Procedure Rules which provides for orders from which an appeal lies as of right and appeals where the leave of court has to be obtained.
6.The respondent further submitted that on the May 24, 2022, Justice Mulwa granted stay of execution on condition that the decretal sum was deposited in court within 10 days from May 26, 2022 which lapsed on June 6, 2022. That the applicant made the deposit on June 7, 2022 by which time Justice Mulwa`s orders had automatically lapsed. That in the premises there is no stay of execution in place and the court has not been asked to issue fresh orders or to extend the time set by Justice Mulwa. The respondent consequently urged the court to dismiss the entire appeal and notice of motion with costs.
7.I have considered the preliminary objection and the grounds adduced in support thereof. The meaning of a preliminary objection was explained by the Court of Appeal in the case of Mukhisa Biscuit Manufacturers Ltd v West End Distributors Ltd  EA 696, where the court stated that:
8.The argument by Mr Kaburu in this matter is that the appellant/applicant was obligated to obtain leave of the court before filing the appeal where the court had declined to grant orders for stay of execution. The preliminary objection thus raises a pure point of law on whether the court has jurisdiction to entertain the matter for failure to obtain leave of the court before filing the appeal.
9.Section 75 of the Civil Procedure Act provides for the orders from which an appeal lies as of right. Further orders where an appeal lies as of right are stated under order 43 rule 1 of the Civil Procedure Rules which provides as follows:
10.Order 43 rules (2) provides as follows:
11.It is then clear that under order 43(2) an appeal shall lie with the leave of the court from any other order made under the rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under order 43(1) leave to appeal must be obtained before such an appeal can be preferred. (See Mutungi J in Serephen Nyasani Menge v Rispah Onsase  eKLR).Order 42 rule 6 under which applications for stay of execution fall is not one of the orders mentioned in order 43(1) where the appeal lies as of right. The appellants ought to have sought leave before filing this appeal.
12.In Stephen Omondi Juma v Sprocer Awuor Rabote  eKLR, Aburili J was faced with a similar issue as the issue before me. She cited a Court of Appeal decision and stated that:Leave to appeal in the instant case did not lie as a matter of right.
13.The applicant seemed to argue that the matter had come up for directions when the court declined to issue stay orders. In my view, directions given by a court are by definition orders of the court. In Grace Wanjiru Kariuki & another v Lydiah Njambi  eKLR, Gitari J considered whether directions given by a court amounted to appealable orders and stated as follows:
14.I am in entire agreement with this holding. The directions given by the trial court amounted to orders of which the respondent ought to have sought leave to appeal.
15.The Court of Appeal in Peter Nyaga Murake v Joseph Mutungi, Nairobi Civil Appeal No 86 of 2015, while dealing with failure to seek leave to appeal from an order stated as follows:
16.It is clear from the court record that the applicant deposited the decretal sum in court after the time given by Justice Mulwa to do so had lapse. The orders by Justice Mulwa were categorical that failure to comply with the time granted to deposit the money would render the stay orders to automatically lapse. The stay orders had lapsed when the money was deposited. The applicant did not seek for extension of time before depositing the money. There are thus no orders for stay of execution in force.
17.In view of the foregoing, the preliminary objection is sustained. There having been no leave to appeal obtained, this court lacks jurisdiction to entertain the matter. The notice of motion dated May 24, 2022 is consequently struck out with costs to the respondent.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH NOVEMBER 2022.J. NYAGA NJAGIJUDGEIn the presence of:No appearance for Appellant/ApplicantMr. Kaburu for RespondentCourt Assistant - Ubah30 days R/A