James Ndungu Gethenji & 3 others v Gitahi Gethenji & 3 others [2018] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal refused to freeze a bank account dispute stay because the applicants never filed a notice of appeal against that specific order.
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 should stay the ruling and orders of the High Court dated 25th October 2018 declining to discharge the freezing order over the Nominal Respondent's bank account
- 2.Whether the intended appeal is arguable and would be rendered nugatory if stay is not granted
- 3.Whether the Court has jurisdiction under rule 5(2)(b) where no Notice of Appeal has been filed against the order sought to be stayed
Key legal issues
#Jurisdiction to grant stay under rule 5(2)(b) in the absence of a notice of appeal against the order to be stayed
The application fails because the applicants filed no Notice of Appeal against the 17th October 2018 freezing order; a notice of appeal against the later ruling of 25th October 2018 cannot support a stay of the earlier order.
The Court of Appeal's jurisdiction under rule 5(2)(b) flows from an appeal or notice of appeal in respect of which the specific relief is sought. The freezing order was made on 17th October 2018 and the applicants filed no notice of appeal against it; the notice upon which they moved challenged only the ruling of 25th October 2018, which merely declined to discharge the earlier order and urged the applicants to file a formal application in the High Court. A stay of an order with no notice of appeal against it cannot be granted.
Character of the ruling of 25th October 2018 - positive order or negative order
The ruling was not a positive order commanding anyone to do anything; it simply declined to discharge the interim freezing order as premature, without a formal application, and directed the applicants to make such an application before the High Court.
The judge gave reasons for declining to discharge the freezing order, holding that discharging it without a formal application would prejudice the respondents who had not had an opportunity to reply, and that the interim orders were made inter partes. Rather than file a formal application to discharge the freezing order before the High Court, the applicants came to the Court of Appeal; the Court held it premature to determine issues relating to discharge of the freezing order, as such an application may determine all pending issues.
Effect of prayers overtaken by events
Prayers 3 and 4, seeking to restrain interference with the general meeting scheduled for 27th October 2018, were spent because the meeting was not held, and the Court made no order in relation to them.
Both applicants' and respondents' counsel conceded that prayers 3 and 4 of the motion had been overtaken by events since the general meeting of 27th October 2018 never took place. The Court therefore made no order on those prayers and confined itself to the remaining prayer concerning the bank account freezing order.
Legal principles established
#- The filing of a notice of appeal is what confers jurisdiction on the Court of Appeal to grant stay, injunction or stay of proceedings under rule 5(2)(b); a stay can only be sought in respect of an order against which a notice of appeal has been filed.
- If no notice of appeal has been lodged against a particular order, no order can be obtained under rule 5(2)(b) in respect of that order.
- In interlocutory applications the orders sought should not decide the rights and obligations of the parties but only keep matters in status quo pending determination.
Court orders
#- 1.No order made in relation to prayers 3 and 4 of the Notice of Motion, which were conceded to have been overtaken by events
- 2.Dismissal of the applicants' Notice of Motion dated 25th October 2018
- 3.Each party to bear its/his/her own costs
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
- HC Petition No. E105 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the order freezing the Nominal Respondent's NIC Bank Account (prayer 2)
No Notice of Appeal was filed against the 17th October 2018 freezing order; the Notice of Appeal challenged only the Ruling of 25th October 2018, so the Court lacked jurisdiction to stay the freezing order
Stay of the injunction restraining interference with the general meeting (prayers 3 and 4)
The general meeting was not held and the prayers had been overtaken by events
Costs
Each party to bear its/his/her own costs
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.
We hereby dismiss the Notice of Motion dated 25th October 2018 and order each party to bear its/his/her own costs.
The upshot is that the applicants Notice of Motion dated 25th October 2018 has no merit as it has not only been overtaken by events but seek to stay a freezing order made on 17th October 2018 yet no Notice of Appeal has been filed against the order.
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 that is clear enough from the wording of the Rule.
A prayer to stay an order made on 17th October 2018 cannot be challenged through a Notice of Appeal impugning the Ruling delivered on 25th October 2018.
Issues in the judgment
#Internal inconsistency in the judgment's reference to the Notice of Motion date - the motion is dated 3rd October 2018 in the opening paragraph but later referred to as the 'Notice of Motion dated 25th October 2018'
The judgment refers to the applicants variously as 'the applicant' (singular) and 'the applicants', and the parties heading describes the motion as brought by 'the respondents' although the applicants moved the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ndungu Gethenji & 3 others v Gitahi Gethenji & 3 others [2018] KECA 58 (KLR)", Case Analysis (2018). Civil Application No. Nai. 307 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/58/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.