KENYA COMMERCIAL BANK LIMITED vs MANASEH ESIPEYA [1999] KECA 183 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the appeal was competent where leave to appeal was neither sought nor obtained
Key legal issues
#Whether an appeal lies as of right from a ruling dismissing a preliminary objection on limitation
No. Such a ruling is an order, not a preliminary decree, and an appeal lies only with leave of the superior court.
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.
The consequence of appealing without the requisite leave
The appeal is incompetent and must be struck out.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out as incompetent
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
#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.
Leave to appeal was not obtained. The consequence of this is that this appeal is incompetent and it is hereby struck out.
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.
Issues in the judgment
#Typographical error in the judgment: 'this Cour' appears instead of 'this Court' in the costs passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.