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Court of AppealStruck OutKisumu Civil Application No. 158 of 2019· [2020] KECA 246 (KLR)
Moses Adero Otieno v China Jiangxi International (K) LTD [2020] KECA 246 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal struck out a stay application because the appellant never filed a Notice of Appeal — no notice, no jurisdiction, no hearing.
What this practically means
#Executive summary
#The applicant, Moses Adero Otieno, moved the Court of Appeal by Notice of Motion dated 13th November 2019 under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of, and an injunction restraining execution of, the judgment of the High Court at Homa-Bay (J. R. Karanjah) delivered on 9th April 2019 in HCCA No. 14 of 2018, pending the hearing and determination of an intended appeal. In a short ruling delivered at Nairobi on 23rd October 2020, the Court of Appeal (Karanja, Makhandia and Gatembu, JJ.A) disposed of the application on jurisdiction alone. The Court observed that although one ground of the application referred to a memorandum of appeal, no memorandum was annexed, and more importantly no Notice of Appeal was annexed to the supporting affidavit, nor did the index refer to any Notice of Appeal. The Court held that its jurisdiction to entertain Rule 5(2)(b) applications derives from a Notice of Appeal filed pursuant to Rule 75 of its Rules, and that in the absence of such a Notice it was devoid of jurisdiction to entertain the application and determine it on its merits. The application was accordingly struck out with costs to the respondent, China Jiangxi International (K) Ltd. No merits of the proposed appeal were considered, and the underlying High Court judgment was not disturbed.
Key legal issues
#01
Jurisdiction over Rule 5(2)(b) applications absent a Notice of Appeal
Holding
The application is struck out for want of jurisdiction
Reasoning
Rule 5(2)(b) permits stay where a notice of appeal has been lodged in accordance with Rule 75, which requires lodgement within fourteen days of the decision. The applicant annexed neither a memorandum of appeal nor a Notice of Appeal, and the index made no reference to one. Jurisdiction under Rule 5(2)(b) is therefore not established, and the application must fail without consideration of the merits.
p. 2
Legal principles established
#- The Court of Appeal's jurisdiction to entertain a Rule 5(2)(b) application arises only from a Notice of Appeal filed pursuant to Rule 75; without such Notice the application cannot be entertained on its merits.
Court orders
#- 1.The Notice of Motion dated 13th November 2019 is struck out
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya at Homa-Bay
- HCCA No. 14 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, exercisable only where a Notice of Appeal has been lodged under Rule 75
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Adero Otieno v China Jiangxi International (K) LTD [2020] KECA 246 (KLR)", Case Analysis (2020). Kisumu Civil Application No. 158 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/246/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.