Board of Management Nyakoko Secondary School v Apache Limited (Civil Appeal E020 of 2023) [2023] KEHC 26347 (KLR) (1 December 2023) (Ruling)
Neutral citation:
[2023] KEHC 26347 (KLR)
Republic of Kenya
Civil Appeal E020 of 2023
RE Aburili, J
December 1, 2023
Between
Board of Management Nyakoko Secondary School
Appellant
and
Apache Limited
Respondent
(An Appeal from the Ruling of Hon. M. Agutu SRM in Kisumu CMCC No. 119 of 2017 delivered on 20th January 2023)
Ruling
Ruling on Court’s Own Motion on the Competency of the Appeal
1.This appeal is before me for admission to hearing. However, the court on 26th April 2023 dismissed the application dated 3rd February 2023 which had sought for leave to extend time for filing of the appeal and for stay of execution of a negative order for payment of decretal sum by instalments.
2.I note that although the appeal was filed within thirty (30) days of the order sought to be appealed from, there is no automatic right of appeal conferred on the Appellant to appeal to this court as the nature of the order appealed from does not lie within the provisions of Section 75 of the Civil Procedure Act as implemented by order 43 of the Civil Procedure Rules.
3.It follows that the person intending to appeal was expected to seek and obtain leave of the trial court which dismissed the impugned application before lodging an appeal to this court.
4.This court has no jurisdiction to grant leave for appeal. It can only hear an appeal which is filed with leave of the lower court.
5.Further, there is a whole difference between leave to appeal against the decision of the lower court and leave to appeal out of time.
6.The latter is what the Appellant herein brought before this court yet is ought to have applied for leave to appeal against the decision, and in the lower court.
7.That being the case, and as the appeal was filed without leave of court that rendered the ruling to be impugned by this court, this appeal is incompetent before this court which is devoid of jurisdiction to hear and determine it on its merits.
8.It is now settled law that where leave to appeal as a prerequisite before an appeal can be lodged, failure to seek and obtain leave is fatal and consequently, no competent appeal can lie against such an order.
9.See Stephen Omondi Juma vs Siproca Awuor Rabote (2022) eKLR citing Nyutu Agrovet Limited vs Airtel Networks Limited (2015) eKLR as reiterated by the Court of Appeal in Microtechnologies Limited vs Cooperative College of Kenya (2017) eKLR. See also Francis Ndahebwa Twala vs Ben Nganyi (2018) eKLR.
10.For the above reasons, this appeal as filed is hereby struck out with no orders as to costs and this file is closed.
11.The lower court file to be returned forthwith.
12.I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 1ST DAY OF DECEMBER, 2023.R. E. ABURILIJUDGE