John N. Liboyi v Board of Governors St John College [2009] KECA 303 (KLR)
The bottom line
#The Court of Appeal confirmed it cannot stay execution of orders you haven't appealed against, so file your notice of appeal or risk losing protection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction under Rule 5(2)(b) to grant a stay of execution of the orders of Khamoni, J where no notice of appeal has been lodged against those orders
- 2.Whether there is anything capable of being stayed in the decision of Lessit, J dismissing an application for enlargement of time
Key legal issues
#Jurisdiction to grant stay under Rule 5(2)(b) depends on a notice of appeal against the very orders sought to be stayed
The Court has no jurisdiction to stay the orders of Khamoni, J because no notice of appeal was filed against those orders; the only notice of appeal before the Court challenged the decision of Lessit, J, which contained nothing capable of being stayed
Rule 5(2)(b) permits the Court to order a stay only 'where notice of appeal has been lodged in accordance with rule 74'. The applicant's notice of appeal dated 17 February 2009 referred only to Lessit, J's ruling dismissing his application to set aside the registered foreign judgment. The orders actually being executed - the registration of the Portsmouth County Court judgment by Khamoni, J - were not the subject of any notice of appeal. Without an appeal against those orders, the Court lacked jurisdiction to stay their execution.
Whether the decision of Lessit, J contained anything capable of being stayed
No. The decision merely dismissed an application for enlargement of time to bring proceedings under the Foreign Judgments (Reciprocal Enforcement) Act, and an order staying such a dismissal would be of no practical assistance to the applicant
The court examined what Lessit, J had actually decided: a dismissal of an application for extension of time. Staying a dismissal would not restore or preserve anything for the applicant; the substantive orders against which he sought protection were those of Khamoni, J registering the UK judgment. The court therefore found the application misconceived in its target as well as lacking in jurisdiction.
Consequence of the lack of jurisdiction
The notice of motion was incompetent and was struck out, with costs to the respondent
Having identified that the Court lacked jurisdiction to make the order sought, the court did not merely dismiss the motion but struck it out as incompetent, and awarded the respondent the costs of the motion. Counsel had been alerted to these matters at the outset of the hearing but took no heed.
Legal principles established
#- Under Rule 5(2)(b) of the Court of Appeal Rules, it is the filing of a notice of appeal that confers on the Court jurisdiction to grant a stay of execution, an injunction or a stay of further proceedings
- A notice of appeal under Rule 5(2)(b) must relate to the decision whose execution is sought to be stayed; the Court cannot stay orders against which no notice of appeal has been lodged
- A court will not stay an order in which there is nothing capable of being stayed, such as an order merely dismissing an application for enlargement of time
Court orders
#- 1.The notice of motion filed by the applicant is incompetent and is struck out
- 2.Costs of the struck out motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 834 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending intended appeal
Relief refused
#Stay of execution of the Judgment/Decree of the High Court (orders of Khamoni, J of 26 October 2007)
There is no pending appeal against the orders of Khamoni, J; only the filing of a notice of appeal confers jurisdiction on the Court to grant a stay under Rule 5(2)(b)
Costs
Costs of the struck out motion awarded to the respondent
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.
The Court has held on occasions too numerous to recite in this ruling that it is the filing of the notice of appeal which confers on the Court the jurisdiction to grant an order of stay, an injunction or a stay of further proceedings.
There is no notice of appeal against the orders made by Khamoni, J and that being so, we have no jurisdiction to grant to the applicant the order for stay of execution
As we lack jurisdiction to make the order the applicant seeks, we order that the notice of motion filed by the applicant is incompetent and must be and is hereby struck out. We award to the respondent the costs of the struck out motion.
Issues in the judgment
#The judgment notes an internal discrepancy in the date of Lessit, J's ruling: the motion describes it as dated 6 February 2009 while the ruling itself bears the date 6 February 2008. The court stated the point was not material.
The notice of motion as reproduced refers to 'John N. Liboy' in the cause title while the body and the notice of appeal use 'John N. Liboyi', a minor inconsistency in the applicant's name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John N. Liboyi v Board of Governors St John College [2009] KECA 303 (KLR)", Case Analysis (2009). Civil Appli 138 of 2009 (UR 92/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/303/eng@2009-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.