Wachira v Wanjohi & 4 others (Civil Application E124 of 2024) [2025] KECA 1270 (KLR)
The bottom line
#The Court of Appeal struck out a stay application because no notice of appeal had been filed against the specific order the applicant wanted stayed.
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 grant a stay of execution and stay of proceedings where no notice of appeal has been filed against the order sought to be stayed
- 2.Whether the High Court was functus officio when it issued the status quo orders of 17th October 2024 (raised as a ground but not reached)
Key legal issues
#Whether rule 5(2)(b) jurisdiction exists absent a notice of appeal against the order sought to be stayed
It does not; the application was struck out for want of jurisdiction because no notice of appeal was filed against the orders of 17th October 2024.
Rule 5(2)(b) permits a stay only 'in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77'. Following Halai & Another v Thornton & Turpin [1963] Ltd and Equity Bank Ltd v West Link MBO Ltd, the filing of a notice of appeal is a condition precedent to invoking the Court's incidental stay powers. The applicant admitted no notice of appeal was filed against the Magare, J. order of 17th October 2024; the pending appeal (E010 of 2024) challenges only the Muchemi, J. judgment. The stay sought related to an order not appealed against, rendering the application incompetent.
Legal principles established
#- The Court of Appeal cannot exercise jurisdiction under rule 5(2)(b) unless a competent notice of appeal has been filed against the decision sought to be stayed; the notice of appeal is a condition precedent.
- Jurisdiction to stay under rule 5(2)(b) is contingent on a notice of appeal having been filed within 14 days pursuant to rule 77 of the Court of Appeal Rules.
Court orders
#- 1.The Notice of Motion dated 27th November 2024 is struck out
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- HCFP&A/E010/2022 (In the Estate of John Mwangi Wachira)
- Jurisdiction invoked
- Section 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the orders dated 17th October 2024 in Nyeri HCFP&A/E010/2022
No notice of appeal was filed against those orders, so the Court lacks jurisdiction under rule 5(2)(b)
Stay of proceedings in Nyeri HCFP&A/E010/2022
The application as a whole was struck out for want of jurisdiction, no competent appeal being on foot against the impugned order
Costs
Costs of the application awarded to the respondents
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.
In the premises we lack the jurisdiction to entertain this application and accordingly strike it out with costs to the respondents.
The filing of the Notice of Appeal from the decision of the High Court is a condition precedent before the powers under rules 5 (2)(b) can be invoked.
The applicant did not exhibit any such notice of appeal against the orders issued on 17th October, 2024, and has therefore incompetently filed the instant application, in so far as it seeks orders of stay of execution against an order not appealed against.
Issues in the judgment
#The judgment refers inconsistently to the impugned order: the application seeks a stay of orders issued on 17th October 2024 by Magare, J., but paragraph 6 states the application arises from an order issued by Kizito Magari, J. on 20th November 2024.
The judge's name appears in two forms in the judgment: 'Magare Dennis Kizito Ngwono' and 'Kizito Magari, J.'
The judgment spells 'appel' (typo for 'Appeal') in referring to Civil Appeal No. E010 of 2024.
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.
- Chemao & 3 others v Mathenge & 5 others (Civil Application E662, E663, E680 & E682 of 2025 (Consolidated)) [2026] KECA 263 (KLR)[2026] KECA 263 (KLR)13 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Wachira v Wanjohi & 4 others (Civil Application E124 of 2024) [2025] KECA 1270 (KLR)", Case Analysis (2025). Nyeri Civil Application (Court of Appeal, Nyeri) arising from HCFP&A/E010/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1270/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.