David Thiong’o T/A Welcome General Stores v Market Fancy Emporium [2007] KECA 5 (KLR)
The bottom line
#Kenya's Court of Appeal can only pause enforcement of the High Court decision it is actually hearing on appeal — not separate lower-court rulings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal can stay execution of a subordinate court's order where the appeal before it is against a superior court's decision
It cannot. The stay jurisdiction under Rule 5(2)(b) is anchored to a Notice of Appeal, which under Rule 74 relates only to a decision of the superior court; therefore the stay can only relate to the decision appealed from.
The Court reasoned that the Court of Appeal Rules are made under the Appellate Jurisdiction Act, which confers jurisdiction to hear appeals from the High Court and matters incidental thereto. Rule 74(1) as read with Rule 74(6) shows a Notice of Appeal relates to a superior court decision. Since the applicant's Notice of Appeal was against Visram J's decision and not El Kindy's ruling, no jurisdiction existed to stay the magistrate's order. Western College was adopted by parity of reasoning.
Whether there was anything capable of execution in El Kindy's dismissal of the application to set aside summary judgment
There was not, save for the order for payment of costs, since the dismissal ordered no party to do or refrain from doing anything.
Applying the reasoning in Western College of Arts and Applied Sciences v Oranga, the Court held that a dismissal order which directs no party to do anything, refrain from anything, or pay any sum leaves nothing for execution to enforce. The only executable element of such a dismissal is the order for payment of costs, which was not what the applicant sought to stay.
Legal principles established
#- The Court of Appeal's jurisdiction to grant a stay of execution under Rule 5(2)(b) arises only upon lodgement of a Notice of Appeal against a decision of the superior court, and any such stay can only relate to the decision of the superior court appealed from - not to an order of a subordinate court
- A dismissal of an application to set aside a summary judgment orders no party to do anything, refrain from doing anything, or pay any sum, so there is nothing to execute except the order for payment of costs
Court orders
#- 1.The application for stay of execution is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 914 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, made under the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)[2025] KEELC 6137 (KLR)22 Sept 2025applied
- Njihia & 36 others v Urithi Housing Co-operative Society & another (Environment & Land Case 25 of 2019) [2023] KEELC 578 (KLR)[2023] KEELC 578 (KLR)9 Feb 2023followed
Cite this brief
#Cite this brief
Caselaw, "David Thiong’o T/A Welcome General Stores v Market Fancy Emporium [2007] KECA 5 (KLR)", Case Analysis (2007). Civil Appli. NAI No. 47 of 2007 (UR. 38/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/5/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.