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Court of AppealDismissedCivil Application No. NAI 86 of 2015· [2015] KECA 475 (KLR)

Peter Nyaga Muvake v Joseph Mutunga [2015] KECA 475 (KLR)

Court of Appeal
31 July 2015
GKG.B.M. KariukiJMJ. MohammedJOJ. O. Odek
2,407 words in judgment
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The bottom line

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The Court of Appeal dismissed a stay application because the appellant never obtained the required leave to appeal, so his notice of appeal was invalid.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kariuki, Mohammed and Odek, JJ.A.) on a notice of motion dated 25th March 2015 by Peter Nyaga Muvake seeking, under Rule 5(2)(b) and other Rules of the Court, a stay of execution of a judgment of the Chief Magistrate's court in Milimani CMCC No. 4109 of 2010 for Shs. 2,038,450 plus costs and interest, pending an intended appeal against the ruling of Mabeya J delivered on 27th February 2015 in H.C.C. Appeal No. 528 of 2014 dismissing the applicant's application for stay in the High Court. The respondent opposed, arguing that the supporting affidavit was undated and that, because the appeal was from an order made under Order 42 Rule 6 of the Civil Procedure Rules, leave of the High Court under Section 75 of the Civil Procedure Act was required but had never been sought or obtained, rendering the appeal incompetent. The court framed three issues: whether the application was defective, whether the appeal was arguable, and whether it would be rendered nugatory absent stay. It held that the omission of the date on the affidavit's jurat was inadvertent and did not vitiate the affidavit, applying Article 159(1)(d) of the Constitution. However, it held that an order under Order 42 Rule 6 is appealable only with leave; since the applicant never obtained leave, no valid notice of appeal was lodged and the Court's jurisdiction was not invoked. The Rule 5(2)(b) principles therefore fell to be considered. The application was dismissed with costs to the respondent. Lower courts are bound by the holding that leave is a sine qua non to a valid notice of appeal where Section 75 and Order 42 require it.

Key legal issues

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01

Whether an undated supporting affidavit is fatally defective

Holding

The omission of the date in the jurat, being inadvertent, does not vitiate the substance of the affidavit, in light of Article 159(1)(d) of the Constitution.

Reasoning

Section 18 of the Oaths and Statutory Declarations Act and Rule 10 of the Oaths and Statutory Declarations Rules require the jurat to show the date and place of the oath. However, the omission here was inadvertent human error; the motion it supported was dated, so the omitted date could only be on or before filing. Guided by Article 159(1)(d) requiring justice to be administered without undue regard to procedural technicalities, the court declined to strike out the affidavit on that ground.

p. 4
02

Whether the intended appeal is competent absent leave to appeal

Holding

The appeal, being against an order made under Order 42 Rule 6 of the Civil Procedure Rules, required leave under Section 75 of the Civil Procedure Act; none was sought or obtained, so no valid notice of appeal was filed and the Court's jurisdiction was not invoked.

Reasoning

Section 75 of the Civil Procedure Act specifies the orders from which appeals lie as of right; orders under Order 42 Rule 6 are not among them. The applicant gave notice of appeal without procuring leave, so the notice was invalid. The court therefore did not consider whether the Rule 5(2)(b) twin principles of arguability and nugatory-ness were satisfied, because jurisdiction was never properly invoked.

p. 5
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Principles governing stay under Rule 5(2)(b) of the Court of Appeal Rules

Holding

Rule 5(2)(b) confers an independent discretionary jurisdiction governed by twin principles: the appeal must be arguable and, if successful, will be rendered nugatory unless stay is granted. The applicant must satisfy both, though a single arguable point suffices.

Reasoning

Restating settled principle, the court noted the rationale balances two propositions: a successful litigant should not be deprived of the fruits of judgment without just cause, and an aggrieved litigant must not be deprived of the right to challenge a decision in the higher court. A solitary arguable point suffices for arguability, and the nugatory principle must also be satisfied. However, these principles were not reached because jurisdiction had not been invoked.

p. 3

Legal principles established

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  • Where leave to appeal is required under Section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, the procurement of leave is a condition precedent to a valid notice of appeal; without it the Court of Appeal has no jurisdiction.
  • An order made under Order 42 Rule 6 of the Civil Procedure Rules is appealable only with leave; it does not lie as of right.
  • An application for stay of execution in an intended appeal against an order appealable only with leave, where leave has not been sought and obtained, is incompetent.

Court orders

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  1. 1.The application by notice of motion dated 25th March 2015 is dismissed
  2. 2.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(1)(d)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRules 45, 47, 48 and 49(1)
  • Civil Procedure Act, Cap 21Section 75
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 43
  • Civil Procedure RulesOrder 40
  • Oaths and Statutory Declarations Act, Chapter 15Section 18
  • Oaths and Statutory Declarations Act, Chapter 15Section 17
  • Oaths and Statutory Declarations RulesRule 10 and Third Schedule

Cases cited (8)

  • Javer v. Pioneer General Insurance Society Ltd
    [1991] KLR
  • Peter Gathecha Gachiri v Attorney General and 4 Others
    Civil Application Nai 24 of 2014 (unreported)
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd v. Kibiru & Another
    [1986] KLR 410
  • Martin Nyaga Wambora v. The County Assembly of Embu and 6 Others
    Civil Application Nai 46 of 2015 (unreported)
  • Kenya Hotel Properties Limited v Willsden Investment Limited & 6 Others
  • Giella vs Cassman Brown & Co. Ltd.
    [1973] EA 358
  • Mrao Ltd. v. First American Bank of Kenya Ltd. & 2 Others
    [2003] KLR 125
On appeal from
High Court of Kenya at Nairobi
H.C.C. Appeal No. 528 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Nyaga Muvake v Joseph Mutunga [2015] KECA 475 (KLR)", Case Analysis (2015). Civil Application No. NAI 86 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/475/eng@2015-07-31

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