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Court of AppealDismissedNotice of motion dated November 21, 2022 (application in a pending appeal, Eldoret)· [2023] KECA 29 (KLR)

P Girls Secondary School & 1 other v Acy (suing Through Her Mother and Next Friend Gt)

Court of Appeal of Kenya
26 January 2023
2,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicants, P Girls Secondary School and Samwel Chepchieng, moved the Court of Appeal at Eldoret under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a judgment of the Chief Magistrate's Court at Eldoret (CMCC No 733 of 2016, delivered May 24, 2019) in favour of the respondent, pending an intended appeal. They argued the appeal was arguable, that the school's accounts had been frozen and garnishee proceedings were imminent, and that seizure of school property during the KCSE examination period would disrupt students' right to education and render the appeal nugatory. The respondent opposed, raising a preliminary objection that no notice of appeal had been filed, hence the court lacked jurisdiction, and that the application was premised on the revoked 2010 Rules. The court prioritised the jurisdictional objection. It held that under rules 77 and 5(2)(b), the court's jurisdiction can only be invoked by lodging a notice of appeal or filing an appeal, following Safaricom v Ocean View, Nairobi City Council v Resley and the Supreme Court in Anuar Loitiptip. No notice of appeal existed against the magistrate's judgment, whose appeal would lie to the High Court; the intended appeal concerned Nyakundi, J's dismissal of an extension-of-time application, and a notice of appeal against that decision could not be used to stay the magistrate's judgment, the two being distinct decisions lying to different courts. The court declined to assess arguability of a non-existent appeal and dismissed the application with costs to the respondent, finding no special circumstances to depart from the rule that costs follow the event.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 5
02

Whether a notice of appeal against a High Court decision can support stay of a magistrate's judgment

Holding

It cannot; the two decisions are distinct, their grounds of appeal differ, and appeals against them lie to different courts

Reasoning

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.

p. 4
03

Whether the court should award costs to the respondent despite the application being dismissed for want of jurisdiction

Holding

Yes; costs follow the event and no special circumstances warranted departing from that rule

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The notice of motion dated November 21, 2022 is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.