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Court of AppealDismissedCivil Application No. NAI 50 of 2013 (UR 30/2013)· [2013] KECA 171 (KLR)

Francis Sirma Kios v Kibore Sigilai [2013] KECA 171 (KLR)

Court of Appeal
18 October 2013
William OukoW. OukoKMK. M'InotiJMJ. Mohammed
1,693 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of execution after the decree has already been carried out—there is nothing left to stay.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Ouko, M'Inoti and J. Mohammed, JJ.A) dismissed a Notice of Motion dated 28th February 2013 in which the applicant sought stay of execution of the judgment and decree of the High Court at Nakuru (Emukule, J) dated 18th May 2012 in HCCC No. 151 of 2004, pending an intended appeal. The underlying dispute concerned ownership of land parcel Waseges/Nyamamithi Block 4/57 in Subukia, arising from balloting of plots among shareholders of Ogilgei Farm Company Limited. The trial judge found the applicant's father's registration fraudulent, dismissed the suit, allowed the counterclaim, and directed rectification of the register. Applying the settled rule 5(2)(b) principles, the Court required the applicant to satisfy both the arguability and nugatory limbs. It found the grounds urged were primarily an impeachment of the certified High Court record and doubted their arguability. More decisively, counsel admitted the decree had effectively been executed, with the respondent in possession of all arable portions. Relying on its prior decisions, the Court held that stay cannot be countenanced where the decree has already been executed, as there is nothing to stay. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The grounds urged, being primarily an impeachment of the certified record of the High Court, did not disclose an arguable appeal with probability of success.

Reasoning

Counsel produced no draft memorandum of appeal; the only grounds were in the supporting affidavit and amounted to attacking the trial court's record. The record presented was certified as a true copy of the court's record, and the court questioned whether a party can present a different record or whether the Court could ignore the certified record on appeal. The court also noted it was not dealing with the merits at this stage.

p. 3
02

Whether stay can lie where the decree has been executed

Holding

No; once the decree has been executed there is nothing to stay, and rule 5(2)(b) cannot properly be invoked.

Reasoning

Counsel for the applicant admitted at the hearing that the decree had effectively been executed and the respondent had taken possession of all arable portions of the suit property. Following prior decisions of the Court, stay of execution cannot be countenanced where the decree sought to be stayed has already been executed; there is nothing left to stay.

p. 3

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy both limbs - an arguable appeal and the nugatory-appeal criterion; satisfying only one is insufficient.
  • A stay of execution cannot be granted where the decree or order sought to be stayed has already been executed; there is nothing left to stay.

Court orders

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  1. 1.The Notice of Motion dated 28th February, 2013 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Registered Land Act, Cap 300 Laws of Kenya (now repealed)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Trust Bank Limited & Another v Investech Bank Ltd & 3 Others
    Civil Application No. NAI 258 of 1999
  • East African Power Management Ltd v The Owners of the Vessel "Victoria Eight"
    NBI Civil Application No. 245 of 2009
  • Peter Mburu Ndururi v James Macharia Njore
    CA No. 29 of 2009 (UR 14/2009)
  • International Centre for Policy and Conflict v Kamlesh Mansukhlal Damji Pattni & 5 Others
    Civil Application No. NAI. 87 of 2013 (UR 57/2013)
  • Kirop Kanda v Gabriel Biwot Kanda & 3 Others
    Civil Application No NAI. 194 of 2005
On appeal from
High Court of Kenya at Nakuru
HCCC No. 151 of 2004
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Francis Sirma Kios v Kibore Sigilai [2013] KECA 171 (KLR)", Case Analysis (2013). Civil Application No. NAI 50 of 2013 (UR 30/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/171/eng@2013-10-18

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