Sadi v Kenya Ports Authority (Civil Appeal E122 of 2023) [2026] KECA 642 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because the appellant never got the court's permission (leave) required before appealing a refusal to reinstate his dismissed case.
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 appellant was required to obtain leave of the court before filing the appeal, given that the impugned ruling arose from Order 17 rule 2 proceedings (reinstatement of a suit dismissed for want of prosecution)
- 2.Whether the trial judge exercised his discretion properly in declining to reinstate the appellant's suit
Key legal issues
#Whether leave was required before lodging the appeal against the ruling declining to reinstate the suit
Yes. The impugned ruling arose from an application under Order 17 rule 2 of the Civil Procedure Rules, which is not among the orders appealable as of right under section 75(1) of the Civil Procedure Act and Order 43 rule 1. Leave was required but was never sought or obtained.
The court traced the proceedings: the suit was dismissed inter partes in 2014 under Order 17 rules 2 and 3, and the impugned 2023 ruling disposed of a Notice of Motion seeking reinstatement under the same provision. Order 17 does not appear in Order 43 rule 1. Following Sanpac Limited v Stanbic Bank Limited, Kakuta Maimai Hamisi and Peter Nyaga Muvake, failure to obtain leave where it is a statutory prerequisite renders the notice of appeal incompetent ab initio and ousts the Court's jurisdiction.
Consequence of instituting an appeal without the required leave
The appeal is incompetent and the Court lacks jurisdiction to entertain it, even where the omission is conceded and counsel offers to seek leave afresh; the Court struck the appeal out.
The Court held that the right of appeal is jurisdictional and cannot be cured by Article 159(2)(d). Since it was common ground that no leave was obtained, the Court concluded its jurisdiction had not been properly invoked and, invoking the maxim that jurisdiction is everything, declined to take any further step and struck the appeal out with costs.
Whether the trial court properly exercised its discretion in declining to reinstate the suit
Not reached. The Court did not determine the merits of the discretionary exercise, having struck the appeal out at the threshold for want of leave.
The Court framed the substantive question - whether the trial judge exercised his discretion properly in declining to reinstate the suit - but expressly deferred it, holding that the leave question goes to jurisdiction and must be resolved first. Having found no jurisdiction, the Court downed its tools without addressing the merits of the reinstatement dispute.
Legal principles established
#- Decisions arising from Order 17 of the Civil Procedure Rules (dismissal/reinstatement of suits for want of prosecution) are appealable only with leave; failure to obtain leave renders the notice of appeal incompetent ab initio and deprives the Court of Appeal of jurisdiction.
- An appellate court will not interfere with the exercise of discretion by a lower court unless that discretion was exercised erroneously in law.
- The right of appeal is a jurisdictional issue that cannot be cured by invocation of Article 159(2)(d) of the Constitution.
Court orders
#- 1.The appeal is struck out for want of jurisdiction
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HCC No. 5 of 2004 (reinstatement application decided 22nd June 2023)
- Jurisdiction invoked
- Section 75(1) of the Civil Procedure Act and Order 43 rule 1 of the Civil Procedure Rules - the appeal required leave, which was never obtained; jurisdiction not properly invoked
Relief refused
#Reinstatement of the suit dismissed for want of prosecution (sought indirectly through this appeal)
The appeal was incompetent because leave to appeal was required under section 75(1) of the Civil Procedure Act and Order 43 rule 1 of the Civil Procedure Rules but was never sought or obtained; jurisdiction was therefore not properly invoked
Counsel's indicated willingness to withdraw the appeal and seek leave afresh
Counsel left the matter to the Court's determination rather than withdrawing
Costs
Struck out with costs to the respondent
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.
Consequently, this appeal is incompetent for want of jurisdiction and is accordingly struck out with costs to the respondent.
Order 17 is not included under the orders and rules listed in Order 43 Rule 1. This means that any decision arising from Order 17 is only appealable with leave of court.
It is trite law that jurisdiction is everything and without it, a court must down its tools, which we hereby do.
where leave is required, failure to obtain it renders the notice of appeal incompetent ab initio and deprives this Court of jurisdiction
Issues in the judgment
#Internal date inconsistency: paragraph 3 states the respondent's dismissal application was dated 17th July 2014, yet the ruling dismissing the suit in the same paragraph and elsewhere is stated to have been delivered on 9th April 2014 - the dismissal predates the application that is said to have precipitated it.
Paragraph 4 describes the reinstatement application as filed 'Approximately eight (8) years from the date of the dismissal' while paragraph 6 states 'a further nine years had elapsed before the reinstatement application was filed'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sadi v Kenya Ports Authority (Civil Appeal E122 of 2023) [2026] KECA 642 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/642/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.