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Court of AppealStruck OutCivil Appli 138 of 2009 (UR 92/2009)· [2009] KECA 303 (KLR)

John N. Liboy v The Board of Governors St John College

Court of Appeal of Kenya
29 May 2009
843 words in judgment
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The bottom line

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The Court of Appeal confirmed it cannot stay execution of orders you haven't appealed against, so file your notice of appeal or risk losing protection.

What this practically means

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Executive summary

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The applicant, John N. Liboyi, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of the judgment and decree of the High Court pending an intended appeal against a ruling of Lessit, J delivered on 6 February 2009, which dismissed his application for enlargement of time to bring proceedings under the Foreign Judgments (Reciprocal Enforcement) Act. The orders actually being executed, however, were those made by Khamoni, J on 26 October 2007 registering a judgment obtained against the applicant by the Portsmouth County Court in the United Kingdom, in respect of which the respondent Board of Governors was executing. The applicant had filed no notice of appeal against Khamoni, J's orders; the only notice of appeal before the Court was against Lessit, J's ruling. The Court held that under Rule 5(2)(b) it is the filing of a notice of appeal that confers jurisdiction to grant a stay, an injunction or a stay of further proceedings. Since there was no notice of appeal against the orders of Khamoni, J, the Court had no jurisdiction to stay their execution, and there was in any event nothing capable of being stayed in Lessit, J's dismissal of an extension application. The Court found the motion incompetent, struck it out, and awarded the respondent the costs of the motion. The ruling was delivered at Nairobi on 29 May 2009 by a bench of Omolo, Aganyanya and Visram, JJA, as a single judgment of the Court.

Key legal issues

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01

Jurisdiction to grant stay under Rule 5(2)(b) depends on a notice of appeal against the very orders sought to be stayed

Holding

The Court has no jurisdiction to stay the orders of Khamoni, J because no notice of appeal was filed against those orders; the only notice of appeal before the Court challenged the decision of Lessit, J, which contained nothing capable of being stayed

Reasoning

Rule 5(2)(b) permits the Court to order a stay only 'where notice of appeal has been lodged in accordance with rule 74'. The applicant's notice of appeal dated 17 February 2009 referred only to Lessit, J's ruling dismissing his application to set aside the registered foreign judgment. The orders actually being executed - the registration of the Portsmouth County Court judgment by Khamoni, J - were not the subject of any notice of appeal. Without an appeal against those orders, the Court lacked jurisdiction to stay their execution.

p. 2
02

Whether the decision of Lessit, J contained anything capable of being stayed

Holding

No. The decision merely dismissed an application for enlargement of time to bring proceedings under the Foreign Judgments (Reciprocal Enforcement) Act, and an order staying such a dismissal would be of no practical assistance to the applicant

Reasoning

The court examined what Lessit, J had actually decided: a dismissal of an application for extension of time. Staying a dismissal would not restore or preserve anything for the applicant; the substantive orders against which he sought protection were those of Khamoni, J registering the UK judgment. The court therefore found the application misconceived in its target as well as lacking in jurisdiction.

p. 1
03

Consequence of the lack of jurisdiction

Holding

The notice of motion was incompetent and was struck out, with costs to the respondent

Reasoning

Having identified that the Court lacked jurisdiction to make the order sought, the court did not merely dismiss the motion but struck it out as incompetent, and awarded the respondent the costs of the motion. Counsel had been alerted to these matters at the outset of the hearing but took no heed.

p. 2

Legal principles established

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  • Under Rule 5(2)(b) of the Court of Appeal Rules, it is the filing of a notice of appeal that confers on the Court jurisdiction to grant a stay of execution, an injunction or a stay of further proceedings
  • A notice of appeal under Rule 5(2)(b) must relate to the decision whose execution is sought to be stayed; the Court cannot stay orders against which no notice of appeal has been lodged
  • A court will not stay an order in which there is nothing capable of being stayed, such as an order merely dismissing an application for enlargement of time

Court orders

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  1. 1.The notice of motion filed by the applicant is incompetent and is struck out
  2. 2.Costs of the struck out motion awarded to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 834 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending intended appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John N. Liboy v The Board of Governors St John College", Case Analysis (2009). Civil Appli 138 of 2009 (UR 92/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/303/eng@2009-05-29

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