Langat v Langat (Civil Application E051 of 2022) [2023] KECA 214 (KLR)
The bottom line
#The Court of Appeal refused to stop enforcement of a land distribution ruling because the applicant had never filed a notice of appeal against that specific ruling.
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 of Appeal has jurisdiction under rule 5(2)(b) to stay the ruling of Ongeri, J of May 6, 2022 where no notice of appeal has been filed against that ruling
Key legal issues
#Whether the Court of Appeal has jurisdiction under rule 5(2)(b) to grant a stay where no notice of appeal has been filed against the specific decision sought to be stayed
The court lacks jurisdiction; the notice of appeal must relate to the ruling and/or judgment sought to be stayed, and the applicant's notice of appeal dated March 31, 2020 challenged the ruling of Dulu, J of March 12, 2020, not the ruling of Ongeri, J of May 6, 2022.
Rule 5(2)(b) is an interlocutory application in a pending appeal; as soon as a notice of appeal is lawfully filed, an appeal is deemed to exist and the party may move the court for preservation orders. The jurisdictional foundation is the notice of appeal under rule 75. The applicant's notice of appeal was dated March 31, 2020 and targeted the ruling of Dulu, J; counsel confirmed no notice of appeal had been filed against Ongeri, J's ruling of May 6, 2022. Without such a notice, the court had no jurisdiction to entertain the motion.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules is predicated on, and only vested with jurisdiction by, a notice of appeal against the very decision sought to be stayed
- The power to grant a stay under rule 5(2)(b) is exercisable only where a notice of appeal has been lodged in accordance with rule 75 of the Court's Rules
Court orders
#- 1.The applicant's notice of motion dated August 24, 2022 seeking a stay of execution of the ruling of Ongeri, J delivered on May 6, 2022 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- Kericho High Court Succession Case No 100 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (as summarised with reference to rule 75); the notice of appeal vests the court with jurisdiction
Relief refused
#Stay of execution of the ruling and order of Ongeri, J of May 6, 2022 in Kericho High Court Succession Case No 100 of 2012
The Court lacked jurisdiction because the notice of appeal upon which the motion was predicated related to the earlier ruling of Dulu, J of March 12, 2020, and no notice of appeal had been filed against the ruling of May 6, 2022 sought to be stayed
Costs
The motion was dismissed with costs (costs of the application 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.
For a start, an application under rule 5(2)(b) is predicated on a notice of appeal intent on challenging a ruling and /or judgment which is sought to be stayed. It is the said notice that vests this court with jurisdiction.
That as soon as a notice of appeal is lawfully filed, an appeal is deemed to be in existence and a litigant can move this court for grant of an order of stay under rule 5 (2) (b) of this Court's Rules.
The power of this court under rule 5 (2) (b) to order a stay of execution, an injunction or a stay of further proceedings is only exercisable where a notice of appeal has been lodged in accordance with rule 75 of this Court's rules.
In the absence of a notice of appeal against the ruling of Ongeri, J of May 6, 2022, it is our view that we do not have jurisdiction to consider the applicant’s motion. It is hereby dismissed with costs.
Issues in the judgment
#The judgment contains internally inconsistent references to the respondent's motion date, alternately described as February 3, 2022 and January 24, 2022, and the text is corrupted with typographical garbling (e.g. 'provispondent and the surveyor', 'the ruded to the reling of May 6, 2022'), obscuring part of the description of Ongeri, J's orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Langat v Langat (Civil Application E051 of 2022) [2023] KECA 214 (KLR)", Case Analysis (2023). Civil Application (Rule 5(2)(b)) arising from Kericho High Court Succession Case No 100 of 2012 (notice of motion dated August 24, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/214/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.