Automated Summary
Key Facts
The case involves Equity Bank Limited (Appellant) appealing against a trial court's 2022 ruling that expunged its 2021 witness statements and documents for being filed out of time without leave. The 1st Respondent, Lilian Nabwire Wafukho, filed a 2016 suit alleging malicious prosecution and defamation, leading to the Appellant's defense in 2017. The appeal was struck out as incompetent due to lack of jurisdiction under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, as the Appellant did not seek prior leave to appeal.
Issues
- Whether the High Court had jurisdiction to hear the appeal without obtaining leave as required by Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, given that the appeal did not fall within the categories of orders that allow appeals as of right.
- Whether the trial court's expungement of the Appellant's witness statements and documents violated its constitutional right to a fair hearing, particularly when the 2nd Respondent did not oppose the filing and the Appellant's case would otherwise be uncontroverted.
Holdings
The court determined that the Appellant's appeal is incompetent and lacks jurisdiction because the right to appeal does not lie automatically, and the Appellant failed to seek and obtain leave prior to filing the appeal. Consequently, the appeal was struck out with costs awarded to the 1st Respondent.
Remedies
- The Appellant's memorandum of appeal dated May 5, 2022 is hereby struck out as incompetent and for want of jurisdiction.
- Costs of the appeal and the subordinate court are awarded to the 1st Respondent.
Legal Principles
- The court emphasized the Rules of Natural Justice, specifically the requirement that courts must not deprive litigants of their right to a fair hearing without proper consideration. This principle was central to the Appellant's argument regarding the expunging of witness statements and documents.
- The court applied the principle that jurisdiction must be conferred by law. It held that the appeal was incompetent as it lacked statutory basis for an appeal as of right and required prior leave which was not sought.
Precedent Name
- Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
- Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
- Martha Wangari Karua v IEBC
- Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission, Ismael Hashimi, Mathew Kipeme Lempurkel
- Mombasa County Government v Kenya Ferry Services & 2 others
- Nyutu Agrovet Limited v Airtel Networks Limited
- Joseph Muthee Kamau & Another v David Mwangi Gichure & Another
- Shailesh Patel t/a Energy Company of Africa v Kessels Engineering Works Pvt. Limited & 2 others
Cited Statute
- Constitution of Kenya
- Civil Procedure Rules, 2010
- Civil Procedure Act
Judge Name
T. W. Ouya
Passage Text
- "It is not in dispute that jurisdiction as well as the right of appeal must be conferred by law, not by implication or inference. If the power and authority of or for a court to entertain a matter (jurisdiction) is not conferred by law then that court has no business to entertain the matter..."
- "The upshot therefore is that the Appellant's memorandum of appeal... is hereby struck out of being incompetent and for want of jurisdiction, with costs to the 1st Respondent."
- "Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself..."