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Court of AppealStruck OutCivil Appeal No. 105 of 1998

KENYA COMMERCIAL BANK LIMITED vs MANASEH ESIPEYA [1999] KECA 183 (KLR)

Court of Appeal
26 March 1999
992 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out KCB's appeal because the bank appealed a failed limitation objection without first getting the court's permission.

What this practically means

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Executive summary

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The respondent sued Kenya Commercial Bank claiming damages for alleged wrongful exercise of the bank's statutory power of sale over land given as loan security, the sale having occurred on 28 October 1981 and the suit filed on 9 January 1992. The bank pleaded limitation in its defence but, rather than applying to strike out the plaint under Order 6 rule 13, raised limitation as a preliminary objection at trial. Nambuye J dismissed the preliminary objection by a ruling dated 5 November 1997. The bank appealed to the Court of Appeal without seeking leave, contending that the ruling amounted to a preliminary decree from which an appeal lay as of right. The Court of Appeal, coram Gicheru, Kwach and Shah JJ.A, took the competency point first. Applying section 2 of the Civil Procedure Act and following G R Mandavia v Rattan Singh [1965] EA 118, it held that a ruling dismissing a preliminary issue of limitation does not conclusively determine the parties' rights and therefore gives rise not to a preliminary decree but only to an order, appealable only with leave. Had the bank proceeded under Order 6 rule 13, an appeal would have lain as of right under Order 42 rule 1; by choosing a preliminary objection under no particular Order, it needed leave it never sought. The appeal was accordingly struck out as incompetent, with no order as to costs in light of counsel's assistance on the novel point. The ruling binds lower courts on the decree/order distinction for failed preliminary issues.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court ruling dismissing a preliminary objection on limitation gave rise to a preliminary decree appealable as of right, or merely an order appealable only with leave
  2. 2.Whether the appeal was competent where leave to appeal was neither sought nor obtained

Key legal issues

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01

Whether an appeal lies as of right from a ruling dismissing a preliminary objection on limitation

Holding

No. Such a ruling is an order, not a preliminary decree, and an appeal lies only with leave of the superior court.

Reasoning

Section 2 of the Civil Procedure Act defines a preliminary decree as one where further proceedings must be taken before the suit is completely disposed of. A ruling dismissing a limitation preliminary objection does not conclusively determine the parties' rights. The point could have been raised under Order 6 rule 13, an order on which is appealable as of right under Order 42 rule 1; but having chosen a preliminary objection under no particular Order, the appellant needed leave, which was not obtained.

p. 2
02

The consequence of appealing without the requisite leave

Holding

The appeal is incompetent and must be struck out.

Reasoning

Following G R Mandavia v Rattan Singh, where a preliminary issue alleging limitation fails, no preliminary decree arises and the unsuccessful party has no right of appeal except with leave. Since leave was neither sought nor obtained, the appeal could not stand and was struck out.

p. 2

Legal principles established

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  • Where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails and the suit is permitted to proceed, no preliminary decree arises but only an order, and the unsuccessful party may appeal only with leave
  • A ruling is a preliminary decree only where it conclusively determines the rights of the parties with regard to matters in controversy in the suit

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 4 of 1992
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Civil Procedure Act (Cap 21); the court first determined whether an appeal lay as of right or only with leave

Relief refused

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The appellant's appeal against the dismissal of its preliminary objection on limitation

The ruling did not give rise to a preliminary decree; it was an order appealable only with leave, which was neither sought nor obtained, rendering the appeal incompetent

p. 2

Costs

No order as to costs; each party to bear their own costs, in view of the appellant's counsel's considerable assistance on a novel point

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails, no preliminary decree arises from which the unsuccessful party has a right of appeal.
p. 2No preliminary decree arises from a failed preliminary issue; appeal lies only with leave
Leave to appeal was not obtained. The consequence of this is that this appeal is incompetent and it is hereby struck out.
p. 2Final orders - appeal struck out for want of leave
In view of the considerable assistance given to this Cour by Mr. Khawaja in bringing out the authorities on this novel point, some of which were against him, we make no order as to costs.
p. 2Costs - no order as to costs

Issues in the judgment

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minor

Typographical error in the judgment: 'this Cour' appears instead of 'this Court' in the costs passage

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA COMMERCIAL BANK LIMITED vs MANASEH ESIPEYA [1999] KECA 183 (KLR)", Case Analysis (1999). Civil Appeal No. 105 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/183/eng@1999-03-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.