Piyush Amrital Haria & 8 others v Panachand J. Shah [2009] KECA 2 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal ground because the litigants never got permission to appeal an interim ruling or filed a separate appeal notice against it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether ground one of the memorandum of appeal, which purports to challenge the ruling of 9th November 2004 refusing cross-examination, is admissible when no leave to appeal against that interlocutory order was obtained
- 2.Whether a notice of appeal filed against the decision of 23rd March 2005 can sustain an appeal against the earlier, separate decision of 9th November 2004
- 3.Whether the preliminary objection was procedurally competent (raised by Githinji, JA in dissent)
Key legal issues
#Appealability of an interlocutory order refusing cross-examination made within a chamber summons to set aside ex-parte judgment
The order of 9th November 2004 was interlocutory and required leave to appeal; without leave, a ground of appeal directed to it is inadmissible and incompetent.
Omolo, JA started from first principles, noting that not all interlocutory orders are appealable as of right. Relying on Delphis Bank Ltd v Channan Singh Chathe, he held the order refusing cross-examination, made on an oral application within the summons to set aside the ex-parte judgment, was of a class for which leave is necessary. No leave was sought from the trial judge or the Court of Appeal, so the ground was incompetent on that basis alone.
Whether one notice of appeal against a substantive ruling covers an earlier procedural ruling made in the same application
Majority: the two decisions were separate and each required its own notice of appeal. Dissent (Githinji, JA): the procedural order was an integral part of the substantive application and one appeal could challenge both.
The majority reasoned that the ruling of 9th November 2004 was concluded some four months before the decision of 23rd March 2005, and the notice of appeal expressly cited only the later decision. Following Nairobi City Council v Resley, a later notice cannot serve an earlier decision. Githinji, JA, dissenting, held the cross-examination application was 'a means to an end', that the real issue of service was decided only on 23rd March 2005, and that requiring separate appeals would proliferate appeals, increase costs and clog the Court of Appeal.
Procedural competence of an oral preliminary objection to a ground of appeal (dissent)
Githinji, JA considered the objection incompetent because the Court of Appeal Rules make no provision for objecting to appeals by preliminary objection, and the respondent neither applied under Rule 80 nor sought leave under Rule 101(b).
The dissent noted that Mr Wasuna never formally filed and served a notice of preliminary objection, taking the appellants' counsel by surprise. The Rules do not provide for raising objections to appeals by preliminary objection; the respondent's proper course was to apply under Rule 80 within the prescribed time, or seek leave at the hearing under Rule 101(b) to raise a competence objection not raised under Rule 80. Having done neither, the objection was procedurally incompetent.
Legal principles established
#- An interlocutory order for which leave to appeal is required cannot be the subject of an appeal where no such leave was sought or obtained from the trial judge or the Court of Appeal.
- Two separate decisions of the High Court each require a separate notice of appeal; a notice of appeal filed against a later decision cannot be used as a basis for an appeal against an earlier decision.
- Where a party is dissatisfied with an earlier decision, that dissatisfaction must be evinced by filing a notice of appeal against that decision; filing such a notice does not halt proceedings on the substantive application, and the resulting appeals may later be consolidated.
Court orders
#- 1.Ground one contained in the memorandum of appeal filed by the appellants is inadmissible and incompetent and is struck out
- 2.The costs occasioned by the preliminary objection shall abide the outcome of the appeal
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Upheld the preliminary objection, holding that the order of 9th November 2004 refusing cross-examination was interlocutory, required leave to appeal which was never sought, and required its own notice of appeal; ordered ground one of the memorandum of appeal struck out as inadmissible and incompetent, with costs of the objection to abide the outcome of the appeal.
ground one contained in the memorandum of appeal filed by the appellants is inadmissible and incompetent and I would order that that ground be struck outp. 3
Wrote the judgment
Wrote the judgment
Would have dismissed the preliminary objection: it was raised without notice and is not provided for by the Court of Appeal Rules; the refusal of leave to cross-examine was a procedural order forming an integral part of the substantive application to set aside the interlocutory judgment, so a single appeal against the substantive ruling suffices.
it is permissible for the appellants to file one appeal both against the procedure in the conduct of the application and against the decision on the meritsp. 4
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.C. No. 109 of 2004
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal procedure (notice of appeal under the Court of Appeal Rules); no constitutional provision invoked
Relief refused
#Githinji, JA's proposed dismissal of the preliminary objection with costs to the appellants
He was in the minority; the majority (Omolo and O'Kubasu, JJA) upheld the objection in part
Costs
The costs occasioned by the preliminary objection shall abide the outcome of the appeal
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.
I would, accordingly, order that the appellants having failed to obtain leave either of the trial Judge or of this Court to appeal against the decision of 9th November, 2004 and there being no notice of appeal against that decision, ground one contained in the memorandum of appeal filed by the appellants is inadmissible and incompetent and I would order that that ground be struck out.
I would further order that the costs occasioned by the preliminary objection shall abide the outcome of the appeal.
Not all interlocutory orders are appealable as of right.
There is no provision for allowing a notice of appeal filed against a later decision to be used as a basis for an appeal against an earlier decision.
it is permissible for the appellants to file one appeal both against the procedure in the conduct of the application and against the decision on the merits.
Issues in the judgment
#Githinji, JA refers to the substantive ruling allowing the summons to set aside as dated 23rd April 2005, whereas the rest of the judgment (and the notice of appeal) date it 23rd March 2005
Githinji, JA states the interlocutory judgment was entered on 28th September 2008, whereas the judgment elsewhere records it as 28th September 2004
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Alexander Munene R Nguu & 2 others v Njue M’tetu & 3 others [2014] KECA 165 (KLR)[2014] KECA 165 (KLR)17 Dec 2014followed
Cite this brief
#Cite this brief
Caselaw, "Piyush Amrital Haria & 8 others v Panachand J. Shah [2009] KECA 2 (KLR)", Case Analysis (2009). Civil Appeal 184 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/2/eng@2009-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.