Macharia v Kihonge (Civil Application E065 of 2022) [2023] KECA 1193 (KLR)
The bottom line
#The Court of Appeal struck out a stay application because the appellant never filed a Notice of Appeal — without that document, the court had no power to help him.
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) to entertain an application for stay of execution where no Notice of Appeal has been lodged on record
- 2.Whether the applicant discharged the burden of proving the existence of a valid, served Notice of Appeal
- 3.Whether the applicant was entitled to stay of execution of the ELC judgment pending appeal
Key legal issues
#Jurisdiction to grant stay under Rule 5(2)(b) in the absence of a Notice of Appeal
The Court lacked jurisdiction to determine the application because no Notice of Appeal was on record, and the application was accordingly struck out
Rule 5(2)(b) read with Rule 77 permits stay applications only once a Notice of Appeal has been lodged. The applicant did not annex any Notice of Appeal, did not plead it, and his assertion from the bar that one was filed on 5th October 2022 amounted to giving evidence without proof. The respondent's unrebuted averment of non-service reinforced the absence of a valid Notice. Lacking the jurisdictional foundation, the Court could not make one more step.
Burden of proving a valid Notice of Appeal
The onus rests on the applicant and was not discharged
Applying section 107 of the Evidence Act, the Court held that the applicant bore the burden of proving the existence of a valid Notice of Appeal. The applicant neither exhibited the document nor alluded to it in his pleadings, and counsel's oral statement from the bar could not constitute proof. The respondent's assertion that she was never served was not rebutted.
Costs of the application
Costs follow the event; the applicant pays the respondent's costs
The Court found no reason to depart from the ordinary rule that costs follow the event. Since the application was struck out, the applicant was ordered to meet the respondent's costs of the application.
Legal principles established
#- The jurisdiction of the Court of Appeal under Rule 5(2)(b) to order a stay of execution is unlocked only by the lodging of a Notice of Appeal; without it the Court has no power to entertain the application
- The burden of proving the existence of a valid Notice of Appeal lies on the applicant invoking the Court's appellate jurisdiction
- A court without jurisdiction must down tools at once and take no further step in the matter
Court orders
#- 1.The notice of motion dated 17th October 2022 is struck out
- 2.The applicant shall meet the respondent's costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nyahururu
- Nyahururu E&LC Case No 57 of 2019 (formerly Nakuru HCCC No 112 of 2003)
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2022 (as read with Rule 77)
Relief refused
#Stay of execution of the judgment and orders of the Environment and Land Court at Nyahururu dated 22nd September 2022
The Court was bereft of jurisdiction because no Notice of Appeal had been lodged on record and the applicant failed to prove that one existed
Costs
The applicant shall meet the respondent's costs for this application
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.
Consequently, we down our tools and strike out the notice of motion dated 17th October 2022.
As for the issue of costs, we find no reason to depart from the rule that ordinarily costs follow the event. The application having been struck out, the applicant shall meet the respondent's costs for this application.
It is clear from the cited authorities that the jurisdiction of an appellate court is unlocked by the filing of a notice of appeal; and without the notice, the appellate court has no power to do anything.
There being no Notice of Appeal on record, this Court is therefore bereft of jurisdiction to determine the instant application.
Issues in the judgment
#Delivery date printed as 6th October 2023 while the motion is dated 17th October 2022 and the replying affidavit 31st October 2022; the application is also said to have been lodged within one month of the 2022 judgment - the sequence is internally consistent, but the certification copy header lacks a case number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Kihonge (Civil Application E065 of 2022) [2023] KECA 1193 (KLR)", Case Analysis (2023). Nyahururu Civil Application No. E048 of 2022 (Notice of Motion dated 17th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1193/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.