Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2011] KECA 390 (KLR)

Nyeri Wholesalers Limited v Kasturi Limited [2011] KECA 390 (KLR)

Court of Appeal of Kenya
4 February 2011
PWP.N. Waki
786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed an urgent stay application because the appellant never filed a notice of appeal, the document that gives the court power to hear the case.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by P.N. Waki, JA on 4th February 2011, on an application under rule 47(5) of the Court of Appeal Rules for certification as urgent of a motion dated 1st November 2010. The motion, brought under rule 5(2)(b), sought stay or setting aside of a stay of execution granted by the High Court on 9th July 2010. The judge had earlier declined to certify the motion urgent because no notice of appeal appeared on the record; at the inter partes hearing the applicant's counsel conceded none had been filed, arguing that Order 41 of the Civil Procedure Rules entitled him to bring the motion without one. The court held this contention totally misconceived: Order 41 is confined to the High Court, which exercises an independent original jurisdiction over stay, a position settled in Githunguri v Jimba Credit Corporation Ltd and De-Len v Muteshi. The Court of Appeal, being a creature of statute under the Appellate Jurisdiction Act Cap 9, can act on an appeal only where a notice of appeal has been filed, and rule 5(2)(b) expressly presupposes a notice lodged under rule 74. Relying on Nairobi City Council v Resley, the judge held that without jurisdiction the court must down tools. Although a single judge cannot strike out the record, the application for urgency was rejected, with costs to the applicant. The ruling binds lower courts and litigants on the notice-of-appeal precondition to rule 5(2)(b) applications.

Key legal issues

#
01

Whether the Court of Appeal has jurisdiction under rule 5(2)(b) absent a notice of appeal

Holding

It does not; the notice of appeal is a precondition to invoking rule 5(2)(b), and without it the Court must decline jurisdiction.

Reasoning

The Court is a creature of statute, its jurisdiction circumscribed by the Appellate Jurisdiction Act. The notice of appeal is the only document showing dissatisfaction with a High Court decision and clothing the Court with jurisdiction. Rule 5(2)(b) expressly requires a notice of appeal lodged in accordance with rule 74. Counsel's concession that no notice was filed was fatal; reliance on Order 41 CPR was misplaced since that Order governs the superior court alone.

p. 2
02

Whether Order 41 of the Civil Procedure Rules can found an application in the Court of Appeal without a notice of appeal

Holding

No; Order 41 is confined to the superior court, whose stay jurisdiction is independent and coterminous with the Court's rule 5(2) jurisdiction.

Reasoning

The court restated the position clarified since 1988 in Githunguri v Jimba Credit Corporation Ltd and De-Len v Muteshi: the High Court exercises an independent original jurisdiction to consider stay relief de novo, while the Court of Appeal's jurisdiction is distinct and conditional on a notice of appeal being on record. Counsel's contention was therefore totally misconceived.

p. 1

Legal principles established

#
  • Rule 5(2)(b) of the Court of Appeal Rules cannot be invoked unless a notice of appeal has been lodged; the notice of appeal is the document that clothes the Court with jurisdiction.
  • Order 41 of the Civil Procedure Rules applies only to the High Court and has no application to the Court of Appeal; the High Court's stay jurisdiction is independent and exercised de novo.

Court orders

#
  1. 1.The application for urgency is rejected
  2. 2.Costs of the application shall be borne by the applicant

Authorities

#

Legislation

  • Court of Appeal Rulesrule 47(5)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 74(3)
  • Civil Procedure RulesOrder 41
  • Appellate Jurisdiction ActCap 9

Cases cited (3)

  • Githunguri v Jimba Credit Corporation Ltd
    [1988] LLR 284 (CAK)
  • De-Len v Muteshi
    [1995 – 1998] 1 EA 25
  • Nairobi City Council v Resley
    [2002] 2 EA 493
On appeal from
High Court
Jurisdiction invoked
Rule 47(5) and rule 5(2)(b) of the Court of Appeal Rules, read with the Appellate Jurisdiction Act, Cap 9

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyeri Wholesalers Limited v Kasturi Limited [2011] KECA 390 (KLR)", Case Analysis (2011). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/390/eng@2011-02-04

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