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Court of AppealStruck OutCivil Application E 094 of 2021· [2022] KECA 447 (KLR)

Kandie v Lekakeny

Court of Appeal
18 March 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,110 words in judgment
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The bottom line

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The Court of Appeal struck out a stay application because the applicant never filed a Notice of Appeal against the judgment he wanted to appeal within 14 days.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJA) on a Notice of Motion dated 8th December 2021 brought under Rule 5(2)(b) of the Court of Appeal Rules. The Applicant, David Kipkurui Kandie, sought orders of status quo and injunction preserving Mombasa Municipality Block XXVI/212 pending an intended appeal against the judgment of the Environment and Land Court (Yano J.) delivered on 21st September 2021 in Mombasa ELC Case No. 126 of 2019, which cancelled his title. He claimed to be a purchaser in possession who had paid the full purchase price to the Respondent vendor, and relied on an earlier ELC judgment in his favour. The Respondent countered that the Applicant paid less than 10% of the purchase price, that the decree had been executed, the title issued to him, and the property sold to a third party, rendering the application overtaken by events. The Court held that a Rule 5(2)(b) application is competent only where a Notice of Appeal has been lodged within 14 days of the judgment intended to be appealed, applying Halai & Another v Thornton & Turpin (1963) Ltd. The only Notice exhibited was dated 3rd February 2020 and lodged against a ruling of 30th January 2020, not the judgment of 21st September 2021. The Court therefore found itself not properly seized of the application, declined to consider the Kinyanjui v Ketter principles, struck out the application with costs to the Respondent. The decision binds subordinate courts and the ELC on the competency requirement.

Key legal issues

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01

Competency of a Rule 5(2)(b) application where the exhibited Notice of Appeal relates to a different, earlier ruling

Holding

The application was incompetent because the Notice of Appeal exhibited was against a ruling of 30th January 2020, not the judgment of 21st September 2021 intended to be appealed.

Reasoning

Rule 5(2)(b) jurisdiction presupposes a Notice of Appeal lodged within 14 days of the judgment to be appealed, per Halai & Another v Thornton & Turpin. The Applicant's Notice was dated 3rd February 2020 and lodged 5th February 2020 against an earlier ruling. No Notice against the 2021 judgment was exhibited, so the Court was not properly seized and could not reach the arguability and nugatory-ness questions in Stanley Kangethe Kinyanjui v Tony Ketter.

p. 2

Legal principles established

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  • A Rule 5(2)(b) application is only competent if a Notice of Appeal against the judgment intended to be appealed was lodged within 14 days of delivery of that judgment.
  • Where no competent Notice of Appeal exists against the impugned judgment, the Court lacks jurisdiction to consider the Rule 5(2)(b) merits and must strike out the application.

Court orders

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  1. 1.The application dated 8th December 2021 is struck out with costs to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (2)

  • Halai & Another vs Thornton & Turpin (1963) Ltd.
    (1990) KLR 365

    Requirement of a Notice of Appeal lodged within 14 days for a competent Rule 5(2)(b) application.

  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR

    Principles of arguability and whether the intended appeal would be rendered nugatory.

On appeal from
Environment and Land Court
Mombasa ELC Case No. 126 of 2019
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, "Kandie v Lekakeny", Case Analysis (2022). Civil Application E 094 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/447/eng@2022-03-18

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