Kenya Bus Services & 4 others v Peninah Kamonya Kivunaga & 1 other
The bottom line
#The Court of Appeal refused to stop enforcement of a 2007 judgment because the company had never actually filed its appeal, only a notice of intent.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to stay execution of a magistrate's court decision not under appeal
The Court declined the stay because the magistrate's court judgment and decree sought to be stayed is not the subject of any appeal before it, and the Court lacks jurisdiction to entertain appeals directly from magistrates' courts.
The Court adopted the reasoning in Kibos vs. Kirui: its jurisdiction under rule 5(2)(b) is invoked by a notice of appeal against the decision whose execution is to be stayed. Here the notice of appeal of 6th February 2017 was against the High Court judgment of 31st January 2017, not the magistrate's decision. Appeals from magistrates' courts lie first to the High Court, so the Court could not stay the trial court's judgment directly.
Absence of a filed appeal against the High Court judgment
Even on the merits, the application failed because although a Notice of Appeal dated 6th February 2017 was filed against the High Court judgment of 31st January 2017, no appeal had been filed, as counsel conceded.
Counsel for the applicants conceded at the hearing that no appeal had been filed against the High Court judgment, some nine years after the Notice of Appeal. Without a filed appeal, the Court could not consider arguability or nugatory-ness. The Court also noted the motion targeted the 2007 judgment and 2012 orders, which were not under appeal, whereas the papers suggested the High Court judgment was targeted but that judgment was not among the decisions sought to be stayed.
Internal inconsistency in the relief sought
The Court observed that the motion sought stay of the trial court's judgment and orders while the affidavit and submissions targeted the High Court judgment and ruling, but proceeded to determine the application despite the lack of clarity.
The Court confessed it was at a loss as to which order the applicants sought to stay: the motion named the 20th September 2007 judgment and 25th May 2012 orders of the magistrate's court, while the supporting affidavit and submissions referred to the High Court judgment of 31st January 2017 and the ruling of 17th May 2018. Rather than strike out the motion for ambiguity, the Court resolved the application on jurisdiction and merits.
Legal principles established
#- The Court of Appeal can only grant stay of execution of a decision that is itself the subject of an appeal before it, upon a notice of appeal relating to that decision.
- The Court of Appeal has no jurisdiction to directly entertain appeals arising from decisions of magistrates' courts; such decisions go first to the High Court.
- Where no appeal is on file, the Court cannot assess the arguability of a non-existent appeal or whether it would be rendered nugatory.
Court orders
#- 1.The notice of motion dated 11th June 2018 is dismissed
- 2.No order as to costs, the respondents not having participated in the proceedings
- On appeal from
- High Court at Milimani
- Appeal against judgment of 31st January 2017 from Milimani Chief Magistrate's Court Civil Case No. 3851 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Bus Services & 4 others v Peninah Kamonya Kivunaga & 1 other", Case Analysis (2026). Civil Application (Notice of Motion dated 11th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1264/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.