National Land Commission v Tom Ojienda & Associates; National Bank of Kenya & another (Garnishee) (Civil Appeal E247 of 2022) [2023] KECA 1537 (KLR)
The bottom line
#Kenya's Court of Appeal struck out the National Land Commission's entire appeal because it filed without the required leave to appeal, confirming leave is mandatory.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear the appeal where the appellant did not obtain leave to appeal before lodging its Notice of Appeal and Record of Appeal
- 2.Whether the lack of leave is a procedural technicality curable by Article 159(2) of the Constitution or by a later, subsequent grant of leave
- 3.Whether the respondent's application to strike out the Record of Appeal was defeated by the thirty-day time limit in Rule 86 of the Court of Appeal Rules
- 4.The merits of the appeal against the garnishee order absolute (not reached, the Court having no jurisdiction)
Key legal issues
#Whether leave to appeal is a jurisdictional prerequisite rather than a procedural technicality
Leave, where prescribed by statute or rule, is a condition precedent for the exercise of the right to appeal; its absence deprives the Court of jurisdiction to entertain the appeal.
The constitutional schema does not confer an absolute right of appeal; leave requirements filter baseless appeals. Because jurisdiction is a bright-line question that cannot be conferred by judicial craft or equity, an appeal lodged without the required leave is no appeal at all and is incurable even if leave is later obtained.
Whether the appellant's subsequent formal application for and grant of leave regularised the appeal
It did not: the appellant had no leave on 5th August 2022 (Notice of Appeal) or 3rd November 2022 (Record of Appeal), and while the Notice of Appeal might be saved by Rule 77(4) if leave were later obtained, the defect respecting the Record of Appeal is incurable.
Order 43 Rule 1(3) requires an application for leave to be made first to the court making the order appealed from. Directions given by this Court on a stay application cannot, by operation of law, amount to leave. Since the Record of Appeal was lodged without leave, the Court is embarking on a barren misadventure if it proceeds.
Whether the respondent's striking-out application was out of time under Rule 86 of the Court of Appeal Rules
It was not: an objection going to jurisdiction may be raised at any time and is not defeated by Rule 86's thirty-day window.
Rule 86 governs ordinary striking-out applications, but the respondent's contention was that lack of leave vitiates the Court's jurisdiction. Jurisdiction, being everything, must be addressed the moment it arises, on the material before the Court.
Legal principles established
#- Where an appeal lies only with leave, failure to obtain that leave before lodging the appeal is a substantive jurisdictional defect, not a curable technicality, and renders the appeal a nullity.
- A deficiency of leave at lodgment cannot be cured by a later grant of leave nor waived by directions given by the Court in a stay application.
- A jurisdictional challenge may be raised at any time, even by the Court suo motu, and is not subject to the time limits in Rule 86 of the Court of Appeal Rules.
- Where leave is required, whether in a first appeal (Rule 88(1)(i)) or a second appeal (Rule 88(2)(a)), the order granting leave must form part of the record of appeal.
Court orders
#- 1.The Record of Appeal filed by the appellant is struck out with costs for lack of jurisdiction
- 2.The applications subsumed in the appeal (the respondent's application dated 27th April 2023 and the appellant's application) stand spent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment: leave to appeal is a jurisdictional prerequisite, not a technicality curable under Article 159(2); the appellant lacked leave when it lodged its Notice of Appeal and Record of Appeal, so the Record of Appeal must be struck out with costs.
I do not think the requirement of obtaining leave to appeal is a technical requirement at all. It goes to the jurisdiction of the Court to hear and determine a dispute.p. 11
Wrote the judgment
Separate concurring judgment agreeing that an appeal filed without required leave is a nullity, that the jurisdictional question may be raised at any time and is free of Rule 86 time strictures, and adding that the order granting leave must be part of the record of appeal; he also remarked on the appellant's refusal to pay fees without a court order.
Where an appeal lies only with leave and a partly purports to file one absent such leave, the appeal so filed is no appeal at all. It is a nullity for all purposesp. 11
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated in the judgment (ruling dated 2nd August 2022 on garnishee proceedings dated 14th July 2022)
- Jurisdiction invoked
- Appeal from an unlisted order required leave under Order 43 Rule 2 of the Civil Procedure Rules, 2020 and Rule 11(3) of the Advocates Remuneration Order; absence of leave deprived the Court of Appeal (Constitution, Article 164) of jurisdiction to entertain the appeal.
- Consolidated with
- Civil Application (Appeal) No E106 of 2022, National Land Commission v Prof. Tom Ojienda & Associates & 2 others (stay application preserved and heard with the appeal)
Relief refused
#Hearing of the appeal on its merits (garnishee, res judicata, special compensation account and public interest grounds)
The Court lacked jurisdiction because the appellant had no leave to appeal when it filed the Record of Appeal; jurisdictional failure cannot be cured by Article 159(2) or later leave.
Costs
The appeal is struck out with costs to the respondent; the applications subsumed in the appeal stand spent.
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 do not think the requirement of obtaining leave to appeal is a technical requirement at all. It goes to the jurisdiction of the Court to hear and determine a dispute.
Where an appeal lies only with leave and a partly purports to file one absent such leave, the appeal so filed is no appeal at all.
Being a jurisdictional question, it is one that can be raised at any point, even by the Court itself suo motu, and is therefore free of the time strictures in Rule 86.
In the end, and inevitably, I agree that the appeal is for striking out with costs, and in consequence, the applications subsumed therein must stand spent.
Issues in the judgment
#The High Court ruling records dismissal of 'the appellant's applications dated 25th July, 2022 and 26th July, 2011' - the date 26th July 2011 appears to be an error for 26th July 2022.
The garnishee proceedings before the High Court are dated 14th July, 2022 in one passage but 14th July, 2019 in the background narration.
The respondent's striking-out application is described as dated 27th April, 2023 and filed in Civil Application (Appeal) No E247 of 2022, while the appellant's stay application of 17th August 2022 was in Civil Application No E106 of 2022; the numbering of the two applications appears transposed in the narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Land Commission v Tom Ojienda & Associates; National Bank of Kenya & another (Garnishee) (Civil Appeal E247 of 2022) [2023] KECA 1537 (KLR)", Case Analysis (2023). Civil Appeal (Appeal) No E247 of 2022 (with Civil Application No E106 of 2022 preserved and subsumed). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1537/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.