Ndiema v Rugara (Civil Appeal (Application) E301 of 2022) [2023] KECA 180 (KLR)
The bottom line
#The Court of Appeal refused to stop enforcement of a land judgment because the appellant never filed a notice of appeal - a critical procedural step.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules to entertain the application where no notice of appeal has been lodged
- 2.Whether the application is properly founded on the Civil Procedure Act and Rules or on Rule 5(2)(b)
- 3.Whether the orders sought should be granted
Key legal issues
#Whether the Court has jurisdiction under Rule 5(2)(b) absent a filed notice of appeal
No. Filing of the notice of appeal is what gives the Court jurisdiction to hear a Rule 5(2)(b) motion; the Appellant filed none, only a memorandum of appeal, so the Court's discretionary power cannot be exercised
Rule 5(2)(b) confers an original, independent discretion on the Court, but that jurisdiction is anchored in the lodging of a notice of appeal under Rule 75. Following Safaricom Ltd v Ocean View Beach Hotel Ltd and Githunguri v Jimba Credit Corporation, the Court held that absent a notice of appeal there is neither an appeal nor a manifested intention to appeal, leaving nothing on which the Rule can operate. The Appellant, though counsel-represented, relied on the wrong instrument.
Whether the application was founded on the correct legal premise
No. The Appellant's reliance on Sections 1A, 3A and 63(a) of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules was misplaced; the correct basis is Rule 5(2)(b) of the Court of Appeal Rules
The Court held that the Appellant was misdirected on the law applicable to stay applications in the Court of Appeal. The Civil Procedure Act and Rules govern the superior court, not the Court of Appeal, whose power to grant interim civil relief pendente lite derives solely from Rule 5(2)(b). Because the Court found the jurisdictional premise failed, it declined to reach the merits of arguability and nugatory-ness.
Legal principles established
#- Jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules is original and unfettered but is invoked only by filing a notice of appeal; without one, the Court has no jurisdiction to grant stay, injunction or stay of further proceedings
- Where no actual appeal is on file, there must at least be a lodged notice of appeal manifesting an intention to appeal; absent that, the Court of Appeal cannot meddle in the decision of the Superior Court
- A memorandum of appeal is not the appropriate instrument of appeal and does not satisfy the rules for filing a civil appeal in the Court of Appeal
Court orders
#- 1.The Notice of Motion application dated August 30, 2022 is dismissed
- 2.The Appellant to pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court
- Nairobi ELC 466 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and orders of the ELC delivered on May 5, 2022
The jurisdiction of the Court under Rule 5(2)(b) was never invoked because no notice of appeal was filed; a memorandum of appeal on record does not satisfy the filing rules
Costs
The application is dismissed with costs (costs to the Respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is invoked by filing a notice of appeal.
Therefore, the Appellant’s failure to file the notice of appeal ties this Court’s hands in the exercise of this discretionary power.
Consequently, we decline to grant the orders sought in the Notice of Motion application dated August 30, 2022 and it is hereby dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiema v Rugara (Civil Appeal (Application) E301 of 2022) [2023] KECA 180 (KLR)", Case Analysis (2023). Civil Application No. E239 of 2022 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/180/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.