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Court of AppealDismissedCivil Application No. E022 of 2020 (Mombasa) — Notice of Motion dated 8th May 2024

Oser & 2 others v Ogada & 3 others (Civil Application E052 of 2024) [2024] KECA 1564 (KLR)

Court of Appeal of Kenya
8 November 2024
2,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a case because no Notice of Appeal was filed against one order and the application came too late for the other.

What this practically means

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Executive summary

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This was a single-application ruling of the Court of Appeal at Mombasa (Murgor, Lesiit and Odunga, JJ.A) delivered on 8th November 2024, in which the applicants sought a stay of execution of High Court orders dated 27th April 2023 and 18th April 2024 in Civil Suit No. E022 of 2020, and a stay of further proceedings in that suit, pending an intended appeal. The impugned orders appointed one Peter Huthu as managing agent over the 3rd applicant's properties and subsequently dismissed the applicants' review application and an application for leave to amend their Statement of Defence. The respondents opposed, contending among other things that no Notice of Appeal had been filed against the orders. The Court held that, as regards the ruling of 27th April 2023, no Notice of Appeal had been filed and it therefore had no jurisdiction to grant a stay in respect of that order. As regards the ruling of 18th April 2024, a Notice of Appeal dated 19th April 2024 was on record, so the Court proceeded under Rule 5(2)(b). It found the intended appeal arguable, giving the applicants the benefit of the doubt, but held that the nugatory limb failed: the trial court had ordered that the defence case stand closed on 30th June 2024, and the application, heard on 1st July 2024, had been overtaken by events, leaving nothing to stay. The motion was accordingly dismissed with costs to the 1st and 2nd respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to grant a stay of execution of the order dated 27th April 2023 in the absence of a Notice of Appeal against that order
  2. 2.Whether the intended appeal against the ruling of 18th April 2024 is arguable
  3. 3.Whether the appeal, if successful, would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the absence of a Notice of Appeal deprives the Court of jurisdiction to entertain a stay application

Holding

Yes. As regards the ruling of 27th April 2023, no Notice of Appeal was filed, and the Court therefore had no jurisdiction to determine the stay application in respect of that order.

Reasoning

The Notice of Appeal serves the important role of informing the successful litigant that their gains may be cut short and signals the intention to pursue an appeal. The Court of Appeal's jurisdiction on appeal is invoked first by the filing of a Notice of Appeal, and Rule 2 of the Court of Appeal Rules defines an appeal to include an intended appeal. Without such a notice against the 27th April 2023 ruling, the Court could not entertain a stay of that order, even though a Notice of Appeal dated 19th April 2024 was filed against the ruling of 18th April 2024.

p. 4
02

Whether the intended appeal was arguable and whether it would be rendered nugatory

Holding

The Court found the appeal arguable, giving the applicants the benefit of the doubt, but held that the nugatory limb failed because the application was overtaken by events — the defence case stood closed on 30th June 2024 before the application was heard on 1st July 2024.

Reasoning

The Court applied the two-limb test under Rule 5(2)(b) as stated in Republic v Kenya Anti-Corruption Commission: arguability and nugatory effect. Although prepared to find the appeal arguable, the Court noted that the trial court's order directed that the defence case stand closed on 30/6/2024. Since the application was heard on 1st July 2024, after that date, there was nothing left to stay. Both limbs had to be satisfied, and failure on the nugatory limb was fatal.

p. 5

Legal principles established

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  • The Court of Appeal's jurisdiction on a Rule 5(2)(b) application is invoked only by the filing of a Notice of Appeal; without a Notice of Appeal against an order, the Court has no jurisdiction to grant a stay in respect of that order.
  • An applicant under Rule 5(2)(b) must satisfy both limbs: that the appeal or intended appeal is arguable, and that its success would otherwise be rendered nugatory.
  • A stay application that comes after the event sought to be stayed, and is therefore overtaken by events, cannot be granted — there is nothing left for the Court to stay.

Court orders

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  1. 1.The Notice of Motion dated 8th May 2024 is dismissed with costs to the 1st and 2nd respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Civil Suit No. E022 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the orders dated 27th April 2023 and 18th April 2024 and stay of further proceedings in High Court Civil Suit No. E022 of 2020

No Notice of Appeal was filed against the order of 27th April 2023, so the Court had no jurisdiction over it; and the application in respect of the order of 18th April 2024 was overtaken by events since the defence case stood closed on 30th June 2024, leaving nothing to stay. The applicants also failed to satisfy both limbs of the Rule 5(2)(b) test.

p. 5

Costs

The Notice of Motion dated 8th May 2024 is dismissed with costs to the 1st and 2nd respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In sum, the applicants having failed to satisfy the two limbs prescribed by Rule 5 (2) (b), the Notice of motion dated 8th May 2024 is dismissed with costs to the 1st and 2nd respondents. It is so ordered.
p. 5Final orders — dismissal of the stay application
Given that there is no Notice of appeal that was filed against the ruling of 27th April 2023, it becomes evident that we have no jurisdiction to determine the application for stay of execution in respect of that order.
p. 4Jurisdiction — necessity of a Notice of Appeal
we take the view that the application has come too late in the day, since the defence closed on 30th June 2024. As a consequence, it has undoubtedly been overtaken by events, and there is nothing for this Court to stay.
p. 5Stay — application overtaken by events
The applicant needs to satisfy the Court that first, the appeal or intended appeal is not frivolous, that is to say, that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds their results or success could be rendered nugatory
p. 4Rule 5(2)(b) — two-limb threshold test

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oser & 2 others v Ogada & 3 others (Civil Application E052 of 2024) [2024] KECA 1564 (KLR)", Case Analysis (2024). Civil Application No. E022 of 2020 (Mombasa) — Notice of Motion dated 8th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1564/eng@2024-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.