Automated Summary
Key Facts
The case involves an appeal by Wageni & Company Advocates against a trial court ruling dismissing their preliminary objection in a defamation suit. The core issue was whether the appeal was competent, hinging on whether the Appellant obtained leave to appeal an interlocutory order. The Court held that the appeal was incompetent due to lack of leave, citing procedural requirements under the Civil Procedure Act and Rules. The suit was ordered to proceed in the trial court.
Issues
- Whether the appeal is competent, specifically whether the Appellant sought the necessary leave to appeal against the dismissal of the preliminary objection as required by the Civil Procedure Rules.
- Whether the Trial Magistrate erred in dismissing the preliminary objection, which challenged the court's jurisdiction to hear the defamation suit and the applicability of the Advocates Act to the dispute.
Holdings
- The court ordered that the costs of the appeal be paid to the Respondent, as the appeal was found to be incompetent.
- The court determined that the suit in Milimani Chief Magistrates Court Commercial Case No. 8810 of 2019 shall proceed for hearing and determination, as the appeal was found to be incompetent.
- The court held that the appeal is incompetent and was struck out with costs due to the failure to obtain leave to appeal a preliminary objection ruling. The Appellant did not seek the necessary leave, which is a requirement for such interlocutory appeals.
Remedies
- Costs of this appeal to the Respondent.
- The appeal is struck out with costs.
- The suit in Milimani CMCC No. 8810 of 2019 proceeds for hearing and determination before the trial Court.
Legal Principles
The court applied the principle that an appeal against the dismissal of a preliminary objection is an interlocutory order and requires leave under Order 43 Rule 2 of the Civil Procedure Rules. Without such leave, the appeal is incompetent.
Precedent Name
- Albert Chaurembo Mumbo & 7 others vs Maurice Munyao & 148 others
- Mbaya -vs- Kamau & Another
- Chege -vs- Osidai Limited
- Peter Nyaga Muvake -vs- Joseph Mutunga
Cited Statute
- Civil Procedure Rules
- Civil Procedure Act
- Advocates Act
- Fair Administrative Action Act
Judge Name
A. C. Mrima
Passage Text
- the failure to seek leave was fatal to the Appellant's case. As such, the appeal is incompetent and is for rejection.
- A perusal of Order 43 Rule 1 confirms that an order dismissing a PreliminaryObjection is not listed as an order appealable as of right.
- In Peter Nyaga Muvake -vs- Joseph Mutunga (2015) eKLR... the procurement of leave is a sine qua non to the lodging of the notice of appeal where no automatic right exists.