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Court of AppealStruck OutCivil Application No. NAI 281 of 1995 (132/95 UR)

Girbux Singh Suri & another v Royal Credit Limited [1995] KECA 123 (KLR)

Court of Appeal
23 November 1995
JGJ. E. GicheruROR. S. C. OmoloASA. B. Shah
1,824 words in judgment
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The bottom line

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The Court of Appeal struck out a stay application because the applicants skipped the required first step of asking the High Court before going to the appeal court.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of an order of Hayanga, J dated 28 September 1995 in H.C.C.C. No. 2546 of 1992, by which the High Court allowed the plaint to be amended to substitute the applicants for a non-existent defendant company against which default judgment had been entered. The Court accepted that the applicants had an arguable appeal, particularly on the point that judgment had been passed against them without an opportunity to defend themselves. However, counsel for the respondent raised the objection that the applicants had never sought a stay in the High Court. The Court analysed the nature of its Rule 5(2)(b) jurisdiction, confirming on the authority of Rhoda Mukuma v John Abuoga and Stanley Munga Githunguri v Jimba Credit Corporation Ltd that it is original and independent, requiring the Court to apply its mind de novo rather than sit in appeal over the judge's discretion. But Rule 41 of the Court's Rules mandatorily requires that any application which may be made either to the Court or to a superior court be made in the first instance to the superior court. The earlier decision in Jean Pierre De-Leu v Adrian G. Muteshi, which suggested otherwise, was distinguished as having been made without the Court's attention being drawn to Rule 41. The Court held the application incompetent and struck it out with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants, having filed a notice of appeal but never having applied for a stay in the High Court, could directly invoke the Court's jurisdiction under Rule 5(2)(b)
  2. 2.Whether Rule 41 of the Court of Appeal Rules mandatorily requires that an application capable of being made either to the Court or to the superior court be made first to the superior court
  3. 3.Whether the decision in Jean Pierre De-Leu v Adrian G. Muteshi precludes a requirement of prior application to the High Court

Key legal issues

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01

Whether failure to seek a stay first in the High Court is fatal to a Rule 5(2)(b) application

Holding

Yes. Rule 41 mandatorily requires such an application to be made first to the superior court; the applicants' omission rendered their application incompetent.

Reasoning

The Court accepted that Rule 5(2)(b) confers an original and independent jurisdiction, as held in Mukuma and Githunguri. However, applications for stay or injunction may be made to both courts, and Rule 41 requires such applications to be made in the first instance to the superior court. This does not derogate from the Court's independent jurisdiction: where the High Court has refused a stay, the Court of Appeal still exercises its own discretion de novo. The notice of appeal founds jurisdiction, but compliance with Rule 41 must precede its invocation.

p. 3
02

The correct treatment of Jean Pierre De-Leu v Adrian G. Muteshi

Holding

Distinguished. That decision was made without the Court's attention being drawn to Rule 41 and cannot stand as authority that a notice of appeal alone suffices.

Reasoning

The Court found it difficult to fit Muteshi into the pattern of decided cases because the ruling contained no reference to Rule 41. Had the rule been brought to the court's attention, it would have had to deal with it before holding that the notice of appeal alone confers jurisdiction. The applicants' attention having now been specifically drawn to the rule, the Court could not ignore it and was obliged to distinguish Muteshi on that basis.

p. 3
03

Whether the applicants had an arguable appeal

Holding

On the merits the applicants had an arguable appeal, at least on the point that judgment was passed against them without an opportunity to defend themselves.

Reasoning

The respondent's suit was instituted against Msumeno Equipment and Construction Co. Ltd, described as a limited liability company, but no such company existed. Default judgment was entered against the non-existent entity. The High Court then allowed substitution of the applicants by way of amendment without setting aside the default judgment or giving them a chance to defend the suit. Had Rule 41 compliance not been an obstacle, the Court doubted the respondent could have resisted the stay application.

p. 2

Legal principles established

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  • Where an application for stay of execution, injunction or stay of proceedings may be made either to the High Court or to the Court of Appeal, Rule 41 of the Court of Appeal Rules mandatorily requires it to be made in the first instance to the superior court; non-compliance renders the application incompetent
  • The notice of appeal forms the foundation of the Court's jurisdiction under Rule 5(2)(b), but the applicant must also show compliance with Rule 41 before invoking that jurisdiction
  • The jurisdiction under Rule 5(2)(b) is an original and independent one; the Court applies its own mind de novo and does not sit in appeal over the High Court's exercise of discretion on a stay

Court orders

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  1. 1.The application for stay of execution is struck out
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
RO
majority
AS
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2546 of 1992
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court order of 28 September 1995 pending the intended appeal

The applicants failed to comply with the mandatory requirement of Rule 41, which requires such an application to be made in the first instance to the superior court, rendering the application incompetent

p. 3

Costs

The application is struck out with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Whenever an application may be made either to the Court or to a superior court, it shall in the first instance be made to the superior court.
p. 3Mandatory requirement of Rule 41 of the Court of Appeal Rules
These applicants ought to have first filed their application in the superior court. That is the mandatory requirement of rule 41. They did not do so. Their application is accordingly incompetent and we order that it be struck out with costs. Those shall be the orders of the Court.
p. 3Final orders striking out the application
That rule confers an independent original discretion on us and we have to apply our minds de novo on the suitability or otherwise of the relief sought. It is not an appeal from the learned Judge's discretion to ours.
p. 2Nature of the Rule 5(2)(b) jurisdiction
No doubt the notice of appeal forms the foundation of the Court's jurisdiction but before the jurisdiction is invoked one ought to show that one has complied with Rule 41 of the Court's Rules.
p. 3Jurisdictional prerequisite of Rule 41 compliance

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Girbux Singh Suri & another v Royal Credit Limited [1995] KECA 123 (KLR)", Case Analysis (1995). Civil Application No. NAI 281 of 1995 (132/95 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/123/eng@1995-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.