Kenya Bus Services & 4 others v Kivunaga & another (Civil Application 171 of 2018) [2026] KECA 1264 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Which order(s) the applicants actually seek to stay, given the inconsistency between the motion and the supporting papers
- 2.Whether the Court has jurisdiction to stay execution of the magistrate's court judgment and decree of 20th September 2007 and orders of 25th May 2012
- 3.Whether there is an arguable appeal before the Court whose execution could be stayed
- 4.Whether any intended appeal would be rendered nugatory if stay is declined
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Stay of execution of the judgment and decree of 20th September 2007 and orders of 25th May 2012 in Milimani CMCC No. 3851 of 2004
The judgment and decree sought to be stayed is not the subject of any appeal before the Court, and the Court has no jurisdiction to directly entertain appeals from magistrates' courts
Costs
Dismissed with no order as to costs since the respondent did not participate in the proceedings.
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.
This Court is bereft of jurisdiction to issue the order of stay sought by the applicant as the Court is only moved upon filing a notice of appeal which must be with respect to the decision appealed against.
In any event, this Court has no jurisdiction to directly entertain appeals arising from the decisions of the magistrates' courts.
There being no appeal before us, we cannot determine the arguability of a non-existent appeal or whether such an appeal would be rendered nugatory.
The end result is that the notice of motion dated 11th June 2018 is without merit and is for dismissal. It is hereby dismissed with no order as to costs since the respondent did not participate in the proceedings.
Issues in the judgment
#The judgment recites that the application came up for hearing on 23rd February 2026 and is dated and delivered at Nairobi on 3rd July 2026, yet the motion was filed on 11th June 2018 and submissions dated 5th March 2021; the chronology is unusual but internally stated in the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Bus Services & 4 others v Kivunaga & another (Civil Application 171 of 2018) [2026] KECA 1264 (KLR)", 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.