Hoking (Kenya) Real Estate Co Ltd v SG (Formerly SR) & another (Civil Appeal (Application) E650 of 2025) [2026] KECA 831 (KLR)
The bottom line
#The Court of Appeal allowed a company to join an appeal but refused it a stay and injunction because no valid notice of appeal had ever been filed.
What this practically means
#Executive summary
#Key legal issues
#Invocation of jurisdiction under rule 5(2)(b)
Jurisdiction was not properly invoked because no valid notice of appeal was demonstrated.
Rule 77(1) requires a notice of appeal to be lodged within fourteen days of the decision appealed against, and this notice triggers the appellate process. Counsel for the applicant was unable, even when specifically asked by the court, to confirm the existence or date of any notice of appeal. Without such a notice there is no basis for the court to exercise its rule 5(2)(b) jurisdiction, following Safaricom v Ocean View and Equity Bank v West Link Mbo.
Status of a draft notice of cross-appeal
A draft cross-appeal annexed to an affidavit cannot substitute for a duly lodged cross-appeal.
Rule 95(1) and (2) require a respondent who wishes to contend that the decision below should be varied or reversed to lodge a notice of cross-appeal within prescribed timelines. A cross-appeal is contingent upon and anchored on a properly instituted appeal and must itself be formally filed. An unfiled draft remains a mere intention and cannot cure the absence of a valid notice of appeal.
Standing of an unjoined party to seek rule 5(2)(b) relief
Substantive relief under rule 5(2)(b) cannot be granted to a party who has not first been properly joined.
Applying Trusted Society of Human Rights Alliance v Mumo Matemu, only a party properly before the court can seek substantive relief. While joinder and substantive prayers may in appropriate circumstances be considered together, the applicant here combined joinder with stay and injunction prayers. Until joinder is effected, the applicant lacks standing to invoke the court's discretionary interim jurisdiction.
Joinder of the applicant
Joinder was granted because the applicant was the 1st defendant at trial and the judgment made substantive orders against it.
The applicant filed a defence in the trial court and the impugned judgment made findings against it, including orders requiring it to vacate the suit property. It therefore has a direct and proximate interest in the subject matter. Applying Trusted Society, the applicant demonstrated a sufficient stake, and its presence is necessary for the complete and effectual determination of the issues.
Legal principles established
#- A notice of appeal is the jurisdictional foundation for any application under rule 5(2)(b); without a valid notice of appeal the Court of Appeal lacks jurisdiction to grant preservative orders.
- A draft notice of cross-appeal annexed to an application cannot invoke the court's jurisdiction; only a duly lodged cross-appeal suffices.
- A party must first be properly joined before it can seek substantive interim relief under rule 5(2)(b).
- A person with a direct and proximate interest adversely affected by the judgment under appeal should be joined for the complete and effectual determination of the dispute.
Court orders
#- 1.Denancy Investment Limited joined as the 2nd respondent in the appeal instituted by Hoking
- 2.Prayers for stay of execution, injunction, and deeming the draft notice of cross-appeal as duly filed declined
- 3.Each party to bear its own costs of the application
- On appeal from
- Environment and Land Court
- Machakos ELC Case No. 86 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; rule 5(2)(b) of the Court of Appeal Rules; article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hoking (Kenya) Real Estate Co Ltd v SG (Formerly SR) & another (Civil Appeal (Application) E650 of 2025) [2026] KECA 831 (KLR)", Case Analysis (2026). Notice of Motion dated 22nd January 2026 in the appeal by Hoking (Kenya) Real Estate Co. Limited. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/831/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.