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Court of AppealDismissedNotice of Motion dated 12th September 2023 (Civil Appeal E418 of 2023 matter)· [2024] KECA 596 (KLR)

Jtg Enterprises Limited v China Gezhouba Group & 1 other

Court of Appeal
24 May 2024
2,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you can file a notice of appeal before getting leave, and courts rarely strike out appeals while leave applications are pending.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Warsame, Ole Kantai and Gachoka, JJ.A) delivered on 24th May 2024 on a Notice of Motion dated 12th September 2023 by JTG Enterprises Ltd, the applicant/decree-holder. JTG had obtained a decree of Kshs. 682,763,067.00 against China Gezhouba Group Corporation in HCCC No. E649 of 2021. When China Gezhouba's application for stay under Order 42 rule 6 came up, the High Court ordered it to pay the admitted sum of Kshs. 84,054,610.68 forthwith. China Gezhouba appealed against those orders without first obtaining leave, then filed an application for leave to appeal before the trial court, which remained pending. JTG moved the Court of Appeal to strike out the appeal, summarily dismiss the related Civil Application No. E418 of 2023 (in which stay had been granted), lift those stay orders, and obtain costs. The Court dismissed the motion. It held that the related application could not be dismissed because it was not before the bench and concerned a different ruling; that under Order 43 rule 1(3) and rule 77(4) of the Court of Appeal Rules, read with the Supreme Court's decision in Salat v IEBC, a notice of appeal need not await leave where an appeal lies only with leave, provided it is filed in time; and that it would be improper to strike out the appeal while the leave application was undetermined, striking out in limine being a draconian power to be used sparingly. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether an appeal filed under Order 42 rule 6 orders requires prior leave and fails if leave is not first obtained

Holding

A notice of appeal need not await leave; leave may be sought within 14 days after the impugned order, even post-filing, and the pending application for leave bars striking out the appeal

Reasoning

Section 75(1)(h) of the Civil Procedure Act and Order 43 rule 1 allow appeals as of right from listed orders, and with leave from other orders. Rule 1(3) contemplates leave being sought after an appeal is filed, within 14 days. Rule 77(4) of the Court of Appeal Rules and the Supreme Court's Salat decision confirm that certification or leave need not precede the notice of appeal. The 1st respondent's leave application was filed within time and remains pending before the trial court.

p. 4
02

Whether the Court could dismiss Civil Application No. E418 of 2023 and the stay orders made in it

Holding

The prayer failed because the application was not before the Court, it targeted a different ruling, and dismissal would amount to the Court sitting on appeal on its own decision

Reasoning

The applicant sought dismissal of a separate application in a different appeal predicated on the main judgment of 22nd August 2023, not the ruling of 23rd August 2023 under challenge here. The bench hearing this motion was not seized of that application, and the stay orders preserve a separate appeal. The prayer was misconceived and the Court criticised the omnibus, confusing drafting of the motion.

p. 3
03

Standard governing striking out of appeals

Holding

Striking out in limine on technical grounds is draconian and reserved for the most hopeless disputes; the present application did not meet that threshold

Reasoning

The Court reiterated that its jurisdiction disfavours striking out suits or appeals at the threshold on technical grounds. Such power must be used sparingly. The present application was premature because it did not holistically consider the leave regime and the pending leave application. Proper drafting of pleadings was emphasised as going to the kernel of the administration of justice.

p. 4

Legal principles established

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  • Where an appeal lies only with leave, a party need not obtain leave before lodging a notice of appeal; the notice of appeal is a jurisdictional pre-requisite and need only be filed within time.
  • Order 43 rule 1(3) of the Civil Procedure Rules permits a party to seek leave to appeal within 14 days after filing an appeal; leave need not be sought first before the appeal is filed.
  • The power to strike out a suit or appeal in limine is draconian and harsh, and should be exercised sparingly and only in the most hopeless cases.
  • A court cannot dismiss an application or appeal that is not properly before it; doing so would amount to sitting on appeal on its own decision.

Court orders

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  1. 1.The Notice of Motion dated 12th September 2023 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court
HCCC No. E649 of 2021
Jurisdiction invoked
Inherent appellate jurisdiction over applications in pending appeals (Court of Appeal Rules, rule 77; Civil Procedure Act, section 75; Civil Procedure Rules Orders 42 and 43)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jtg Enterprises Limited v China Gezhouba Group & 1 other", Case Analysis (2024). Notice of Motion dated 12th September 2023 (Civil Appeal E418 of 2023 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/596/eng@2024-05-24

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