DAVID THIONG’O T/A WELCOME GENERAL STORES v DAVID THIONG’O T/A WELCOME GENERAL STORES [2007] KECA 492 (KLR)
The bottom line
#Kenya's Court of Appeal cannot use Rule 5(2)(b) to stay a magistrate's order — its stay power only covers the High Court decision being appealed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal can stay execution of a subordinate court's order under Rule 5(2)(b) where the appeal before it is from a superior court decision.
The Court has no such jurisdiction; Rule 5(2)(b) stay power attaches only to the decision of the superior court which is the subject of the Notice of Appeal.
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. Under Rule 74, a Notice of Appeal relates only to a decision of the superior court, and it is the lodging of the Notice of Appeal that confers jurisdiction to grant stay under Rule 5(2)(b). Therefore the stay can only relate to the decision appealed from, here Visram J's order, not the subordinate court's ruling of El Kindy.
Whether, independently of jurisdiction, there was anything in the magistrate's dismissal of the application to set aside summary judgment capable of being stayed.
No; a dismissal orders no party to do or refrain from doing anything or to pay any sum, so there is nothing to execute except costs.
Applying by parity of reasoning the Western College decision, where the High Court has not ordered a party to do anything, refrain from anything, or pay any sum, there is nothing arising out of the judgment for the Court of Appeal on an application for stay to enforce or restrain by injunction. El Kindy merely dismissed the application to set aside the summary judgment, leaving only the order for payment of costs as executable.
Legal principles established
#- The Court of Appeal's jurisdiction to grant a stay of execution under Rule 5(2)(b) is confined to the decision of the superior court that is the subject of the Notice of Appeal; it does not extend to staying orders of subordinate courts under appeal in the High Court.
- A dismissal of an application to set aside a summary judgment is not capable of execution, since it orders no party to do or refrain from doing anything or to pay any sum, except as to 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
#Cite this brief
#Cite this brief
Caselaw, "DAVID THIONG’O T/A WELCOME GENERAL STORES v DAVID THIONG’O T/A WELCOME GENERAL STORES [2007] KECA 492 (KLR)", Case Analysis (2007). Civil Appli 47 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/492/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.