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Court of AppealDismissedCivil Application No. NAI. 132 of 2001 (UR. 73/2001)

CECILIA NTARA vs ORIX OIL KENYA LTD. [2001] KECA 184 (KLR)

Court of Appeal
18 May 2001
RKR.O. KwachROR.S.C. OmoloSBS.E.O. Bosire
202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause the enforcement of a High Court order because the applicant never first got permission to appeal it.

What this practically means

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Executive summary

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This brief ruling of the Court of Appeal at Nyeri, delivered on 18th May 2001 by Kwach, Omolo and Bosire, JJ.A, disposes of a single interlocutory application. Cecilia Ntara, the applicant, moved the Court under rule 5(2)(b) of the Court's Rules for a stay of what the Court described as 'what is essentially execution process under Order 21 of the Civil Procedure Rules'. The application was brought in an intended appeal from a ruling of the High Court of Kenya at Meru (Tuiyot J) dated 19th April 2001 in H.C.C.C No. 35 of 1999, in which Orix Oil Kenya Ltd. was the respondent. The Court resolved the application on a single threshold obstacle. The order sought to be stayed was one from which no appeal lies without the leave of the superior court, and there was no evidence that the applicant had applied for leave to appeal within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules. On that basis alone the Court held that the application could not succeed. The Court dismissed the application but made no order as to costs, so each party bears its own costs. The decision of the High Court was not disturbed; the effect of the dismissal is that the Meru ruling and the execution process under it stand unstayed. Although short, the ruling states a proposition of general application: where a rule 5(2)(b) application targets an order that is appealable only with leave, the applicant must demonstrate that a leave application was made within the prescribed time; absent such evidence, the Court of Appeal will dismiss the stay application.

Questions the Court framed

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

  1. 1.Whether the applicant was entitled to a stay of execution under rule 5(2)(b) of the Court of Appeal Rules in an intended appeal against an order under Order 21 of the Civil Procedure Rules, given that no appeal lies from that order without leave of the superior court and no application for leave to appeal was made within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules.

Key legal issues

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01

Whether a stay of execution could be granted under rule 5(2)(b) of the Court of Appeal Rules in respect of an Order 21 order where no appeal lies without leave and no leave application was made in time.

Holding

No. The application failed because the order sought to be stayed was not appealable without leave of the superior court, and there was no evidence of any application for leave to appeal within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules.

Reasoning

The Court treated the application as one for a stay of execution process under Order 21 of the Civil Procedure Rules. It identified a fatal threshold defect: the order targeted was one from which no appeal lies without leave of the superior court, and there was no evidence that the applicant applied for leave to appeal within the period prescribed by Order 42 rule 2(3) of the Civil Procedure Rules. Since the intended appeal could not proceed without leave, and no timely leave application was demonstrated, the rule 5(2)(b) application could not succeed and was dismissed, with no order as to costs.

p. 2

Legal principles established

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  • Where the order targeted by a rule 5(2)(b) application for stay of execution is one from which no appeal lies without leave of the superior court, and there is no evidence that an application for leave to appeal was made within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules, the Court of Appeal will dismiss the stay application.

Court orders

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  1. 1.The application for stay of execution is dismissed.
  2. 2.No order as to costs.

The bench

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

RK
majority
RO
majority
SB
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C No. 35 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules ('the Rules of this Court') - the Court's power to order a stay of execution in an intended appeal

Relief refused

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Stay of execution of the Order 21 order contained in the ruling of Tuiyot J dated 19th April 2001 in H.C.C.C No. 35 of 1999

No appeal lies from that order without the leave of the superior court, and there was no evidence that an application for leave to appeal was made within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules.

p. 2

Costs

No order as to costs - the application was dismissed 'but with no order as to costs', so each party bears its own costs.

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.

For these reasons this application fails and is dismissed but with no order as to costs.
p. 2Final orders - dismissal of the rule 5(2)(b) stay application with no order as to costs
No appeal lies from that order without the leave of the superior court and there in no evidence that an application for leave to appeal was made within the time prescribed by Order 42 rule 2(3) of the Civil Procedure Rules.
p. 2Leave to appeal - Order 21 execution orders are appealable only with leave; a timely leave application is a prerequisite to a rule 5(2)(b) stay
This is an application under rule 5(2)(b) of the Rules of this Court for a stay of what is essentially execution process under Order 21 of the Civil Procedure Rules.
p. 2Characterisation of the application before the Court

Issues in the judgment

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minor

Typographical error in the ruling: 'there in no evidence' appears where 'there is no evidence' is intended; verbatim quote-matching systems should preserve the typo as printed.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CECILIA NTARA vs ORIX OIL KENYA LTD. [2001] KECA 184 (KLR)", Case Analysis (2001). Civil Application No. NAI. 132 of 2001 (UR. 73/2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/184/eng@2001-05-18

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