P Girls Secondary School & 1 other v Acy (suing Through Her Mother and Next Friend Gt)
The bottom line
#Kenya's Court of Appeal refused to stop execution of a money judgment because no notice of appeal had been filed against it — jurisdiction comes first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction under rule 5(2)(b) where no notice of appeal has been lodged against the decision sought to be stayed
It does not; the lodging of a notice of appeal or filing of an appeal is a condition precedent to invoking the court's jurisdiction, and without it the court must down its tools
The court relied on its own precedent in Safaricom v Ocean View, Nairobi City Council v Resley and the Supreme Court in Anuar Loitiptip to hold that a notice of appeal is an absolute requirement that invokes jurisdiction. Since no notice of appeal existed against the magistrate's judgment, the intended appeal being to the High Court, the application for stay was rendered an exercise in futility and the court declined to consider arguability or nugatory-ness of a non-existent appeal.
Whether a notice of appeal against a High Court decision can support stay of a magistrate's judgment
It cannot; the two decisions are distinct, their grounds of appeal differ, and appeals against them lie to different courts
The court distinguished between the magistrate's judgment of 2019 and Nyakundi, J's dismissal of the extension-of-time application. An appeal against the magistrate's judgment goes to the High Court, while an appeal against a High Court judge's decision comes to the Court of Appeal. Granting orders against the magistrate's decision based on a proposed appeal in another court whose outcome is unknown would be speculative.
Whether the court should award costs to the respondent despite the application being dismissed for want of jurisdiction
Yes; costs follow the event and no special circumstances warranted departing from that rule
The court noted the general rule that costs follow the event and that departure requires special circumstances. Given the applicants' history of filing a plethora of applications before the High Court without pursuing them to conclusion, thereby forcing the respondent to incur costs, fairness dictated that the respondent recoup the costs of defending this application.
Legal principles established
#- The jurisdiction of the Court of Appeal under rule 5(2)(b) can only be invoked by the lodging of a notice of appeal or the filing of an appeal; without a notice of appeal the court has no jurisdiction to grant stay of a decision of a lower court
- A notice of appeal against one decision (here, the High Court's dismissal of an extension-of-time application) cannot be used to obtain stay of a different decision of a different court (here, the magistrate's judgment); each appeal is confined to the decision appealed against
- The Court of Appeal's jurisdiction under Article 164 of the Constitution extends to appeals from the High Court and such other courts as prescribed by an Act of Parliament, not to appeals from magistrates' courts
Court orders
#- 1.The notice of motion dated November 21, 2022 is dismissed
- 2.The applicants shall meet the respondent's costs for the application
- On appeal from
- High Court of Kenya (decision of Nyakundi, J dated November 3, 2022; underlying judgment: Chief Magistrate's Court, Eldoret CMCC No 733 of 2016, delivered May 24, 2019)
- Eldoret High Court Appeal No E072 of 2021
- Jurisdiction invoked
- Articles 156(4) & (6), 159(2) and 164(3) of the Constitution; sections 3A and 38 of the Appellate Jurisdiction Act; rules 5(2)(b) and 47 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stephen Kimani Kamau v Thomas Ouma Ahinga & 4 others[2025] KECA 1865 (KLR)7 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "P Girls Secondary School & 1 other v Acy (suing Through Her Mother and Next Friend Gt)", Case Analysis (2023). Notice of motion dated November 21, 2022 (application in a pending appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/29/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.