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Court of AppealAllowedCivil Application No. 42 of 2003

Postal Corporation of Kenya v Kamconsult Limited & another [2006] KECA 96 (KLR)

Court of Appeal of Kenya
13 October 2006
EOE.O. O'KubasuJOJ.W. Onyango OtienoWDW.S. Deverell
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal certain procedural rulings without the court's permission first — skip that step and your appeal is dead.

What this practically means

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Executive summary

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This was an application by Postal Corporation of Kenya under Rules 1(2), 42(1) and 80 of the Court of Appeal Rules seeking to strike out a notice of appeal filed by the first respondent, Kamconsult Limited, against a High Court ruling of Ringera, J dated 11th December 2001. In that ruling the Judge upheld a preliminary objection on a point of law and dismissed an application for review and related orders arising from an arbitration cause, holding that no right of review lay under section 17(6) of the Arbitration Act. Kamconsult filed a notice of appeal under rule 74 without obtaining leave. The applicant argued that because the decision was made on a preliminary objection, Kamconsult had no right of appeal without leave, which had neither been sought nor granted. The Court of Appeal agreed, adopting Law JA's reasoning in G.R. Mandavia v Ratta Singh and its own decision in Kenya Commercial Bank Ltd v Tony Manaseh Esipeya: where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails, no preliminary decree arises but only an order, appealable only with leave. Applying that rule, the Court found the notice of appeal incompetent and struck it out with costs to the applicant and the second respondent, Telkom Kenya. The judgment binds lower courts on the distinction between orders and decrees arising from preliminary issues and the consequential leave requirement.

Questions the Court framed

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

  1. 1.Whether a notice of appeal filed by the first respondent against the High Court ruling of 11th December 2001, upholding a preliminary objection on jurisdiction, was competent without leave
  2. 2.Whether an order arising from a failed preliminary issue on jurisdiction is appealable as of right or only with leave

Key legal issues

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01

Appealability of an order upholding a preliminary objection on jurisdiction

Holding

An order made where a preliminary issue on jurisdiction fails is not a preliminary decree but a mere order, appealable only with leave; a notice of appeal filed without leave is incompetent and must be struck out.

Reasoning

The Court relied on the East African authority of G.R. Mandavia v Ratta Singh and its own prior decision in Kenya Commercial Bank Ltd v Tony Manaseh Esipeya, which adopted Law JA's formulation that when a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails, no preliminary decree arises from which an unsuccessful party has a right of appeal as of right. Applying that principle, the High Court's ruling of 11th December 2001, which upheld the preliminary objection on jurisdiction, gave rise only to an order. Since the first respondent neither sought nor obtained leave, its notice of appeal under rule 74 was incompetent and was struck out with costs.

p. 3

Legal principles established

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  • Where a preliminary issue alleging misjoinder, limitation, lack of jurisdiction or res judicata fails, no preliminary decree arises but only an order, from which the unsuccessful party may appeal only with leave; a notice of appeal filed without leave is incompetent and liable to be struck out.

Court orders

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  1. 1.The notice of appeal dated 20th December 2001 and filed on 21st December 2001 by the first respondent Kamconsult Limited is struck out
  2. 2.Costs of the application to the applicant Postal Corporation of Kenya and the 2nd respondent Telkom Kenya

The bench

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

EO
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 262 of 2001 (OS)
Jurisdiction invoked
Court of Appeal Rules, Rules 1(2), 42(1) and 80 (inherent power / striking out applications)

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.

Similarly in the present application, the preliminary objection having been raised on the issue of jurisdiction it follows that the order was appealable only with leave and as such leave was neither sought nor obtained the notice of appeal filed by the 1st respondent must be incompetent.
p. 3Requirement of leave to appeal where preliminary issue on jurisdiction fails
We order that the same be and is hereby struck out with costs to the applicant Postal Corporation of Kenya and 2nd respondent Telkom Kenya.
p. 3Final orders - striking out of notice of appeal

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, "Postal Corporation of Kenya v Kamconsult Limited & another [2006] KECA 96 (KLR)", Case Analysis (2006). Civil Application No. 42 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/96/eng@2006-10-13

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