Girbux Singh Suri & another v Royal Credit Limited [1995] KECA 123 (KLR)

The Court accepted that Rule 5(2)(b) confers an original and independent jurisdiction, as held in Mukuma and Githunguri. However, applications for stay or injunction may be made to both courts, and Rule 41 requires such applications to be made in the first instance to the superior court. This does not derogate from the Court's independent jurisdiction: where the High Court has refused a stay, the Court of Appeal still exercises its own discretion de novo. The notice of appeal founds jurisdiction, but compliance with Rule 41 must precede its invocation.

The Court found it difficult to fit Muteshi into the pattern of decided cases because the ruling contained no reference to Rule 41. Had the rule been brought to the court's attention, it would have had to deal with it before holding that the notice of appeal alone confers jurisdiction. The applicants' attention having now been specifically drawn to the rule, the Court could not ignore it and was obliged to distinguish Muteshi on that basis.

The respondent's suit was instituted against Msumeno Equipment and Construction Co. Ltd, described as a limited liability company, but no such company existed. Default judgment was entered against the non-existent entity. The High Court then allowed substitution of the applicants by way of amendment without setting aside the default judgment or giving them a chance to defend the suit. Had Rule 41 compliance not been an obstacle, the Court doubted the respondent could have resisted the stay application.