Muriuki & another v Equity Bank Limited & another (Civil Appeal E017 of 2025) [2025] KEHC 16312 (KLR) (12 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 16312 (KLR)
Republic of Kenya
Civil Appeal E017 of 2025
RM Mwongo, J
November 12, 2025
Between
Gabriel Njue Muriuki
1st Appellant
Lucy Ruguru Nyaga
2nd Appellant
and
Equity Bank Limited
1st Respondent
Samuel Karithi t/a Quickline Auctioneers
2nd Respondent
Ruling
The Preliminary Objection
1.The 1st respondent/objector filed a preliminary objection dated 17th April 2025 on grounds that:1.The appeal is incompetent, bad in law and fatally defective for it has been filed out of time and without leave of the honourable court.2.The appeal offends the mandatory provisions of Section 79G of the Civil Procedure Act.3.The appeal was filed on 27th February 2025 which is over the mandatory 30 days since the ruling was delivered on 23rd January 2025.4.The appeal is an abuse of the court process and the same ought to be struck out with costs to the 1st Respondent.
Background
2.The appellant/respondents filed a notice of motion dated 12th March 2025 seeking an order for stay of execution of the ruling of the trial court in Embu MCCC Misc. E032 of 2024 delivered on 23rd January 2025. They stated that they had already appealed against the said decision by filing a memorandum of appeal dated 27th February 2025 and the stay order should be put in place pending the said appeal. The court time stamp on the memorandum of appeal indicates that it was filed on 03rd March 2025. These facts are not disputed.
3.The 1st respondent/objector opposed the application through grounds of opposition. It also filed the preliminary objection herein.
Submissions
4.The court directed parties to file written submissions of the preliminary objection but only the objector complied.
5.The 1st respondent/objector stated that the objection meets the requirements for one as stated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 at page 700. It stated that the appellants filed an appeal out of time without seeking leave to do so as provided for under section 79G of the Civil Procedure Act. As such, that the appeal ought to be struck out for not being properly before court. It relied on the case of Kemboi v Kangogo & another [2024] KEHC 1801 (KLR).
6.The appellant/respondents indicated that they will not be submitting on the preliminary objection.
Issue for Determination
7.The only issue for determination is whether the preliminary objection has merit.
Analysis and Determination
8.The merit or otherwise of a preliminary objection is determined by considering the nature of issues raised therein. It is trite that a preliminary objection can only be raised based purely on legal issues. Additionally, the determination of those legal issues should have the overall effect of determining the primary suit if the preliminary objection succeeds. This was the position taken by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (supra) where it was held thus:
9.The issue raised though the objection is that the appeal filed by the appellant is not properly before court as it was filed out of time without the leave of court as required according by section 79G of the Civil Procedure Act. The notice of motion dated 12th March 2025 seeks stay of execution of the trial court’s ruling, ending appeal. According to that application, the appeal is dated 27th February 2025 while the impugned ruling was delivered on 23rd January 2025. The court record shows that the memorandum of appeal was filed on 03rd March 2025. This is means that it was filed 8 days too late because the 30 days to appeal ended on 23rd February 2025.
10.The appellants did not move the court through an application for extension of time to appeal even though they had the option. Stay of execution orders cannot be granted in a vacuum. There are conditions to be met and execution is granted pending certain events so that the decree-holder is not unjustly denied enjoyment of the fruits of his judgment.
Conclusion and Disposition
11.In the circumstances, it is clear that a stay application would be a futile exercise because the purpose of the order would have been extinguished, given that the appeal is improperly before the court.
12.Accordingly, the preliminary objection has merit and it is hereby allowed. Orders are hereby given for striking out the notice of motion dated 12th March 2025 and the memorandum of appeal dated 27th February 2025, as I hereby do.
13.Orders accordingly.
DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 12TH DAY OF NOVEMBER, 2025. ___________________ R. MWONGOJUDGEDelivered in the presence of:1. Kipngetich for 1st App/Respondent2. No Representation for Samuel Kariithi3. Njagi for 1st and 2nd Apps4. Francis Munyao - Court Assistant