Tsilla Nkirote Muthomo v Zipporah Kambura Muthomi
The bottom line
#The Court of Appeal struck out a stay application because the applicant never filed a notice of appeal against the very ruling she wanted stayed.
What this practically means
#Executive summary
#Key legal issues
#Competence of a rule 5(2)(b) application where the impugned decision was not appealed against
The application is incompetent where no notice of appeal was exhibited against the ruling sought to be stayed; the Court's jurisdiction is never invoked.
The Court held that its power to stay a ruling or judgment is conditional on a notice of appeal being filed within 14 days under rule 77 (now rule 5(2)(b)). The applicant sought to stay the 23rd May 2024 ruling setting aside the earlier stay, yet the only notice of appeal on record was dated 5th May 2023 against the 27th April 2023 ruling. The respondent's uncontroverted affidavit established this omission, so the jurisdiction of the Court was not properly invoked and the application fell to be struck out.
Test for stay pending appeal under rule 5(2)(b)
The jurisdiction is discretionary and unfettered; the twin principles of arguability and nugatory-ness must be established on the facts of each case.
The Court restated the settled test from Trust Bank Ltd & Another v Investech Bank Ltd & 3 Others: the jurisdiction under rule 5(2)(b) is original and discretionary, and an applicant must show the intended appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory unless stay is granted. These principles are considered against the facts and circumstances of each case. The Court did not reach the merits because the application failed at the threshold of competence.
Legal principles established
#- This Court's jurisdiction to grant stay under rule 5(2)(b) requires a notice of appeal to have been filed against the ruling or judgment sought to be stayed within 14 days of delivery; absent such notice the application is incompetent.
- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is denied.
Court orders
#- 1.The application is struck out
- On appeal from
- High Court of Kenya at Meru
- Succession Cause No. 160 of 1997
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mark Kithinji Mbatiah v Najahait Faizal Hightower Alias Hightower Faizal Wilber Earl (sued As The Legal Representative of The Estate of Wilber Hightower (deceased))[2025] KECA 1833 (KLR)7 Nov 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Tsilla Nkirote Muthomo v Zipporah Kambura Muthomi", Case Analysis (2025). Civil Application No. E107 of 2023 (stay application in intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/345/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.