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Court of AppealDismissedCivil Application E024 of 2021· [2022] KECA 959 (KLR)

Charles Mwangi Gitundu v Charles Wanjohi Wathuku

Court of Appeal
26 August 2022
WKW KaranjaAMA K MurgorAMA Mbogholi-Msagha
1,119 words in judgment
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The bottom line

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The Court of Appeal refused to stop execution of a money decree because the appellant never filed a Notice of Appeal against that specific decision.

What this practically means

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Executive summary

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The applicant, appellant in Nyeri High Court Civil Appeal No. 19 of 2020, sought stay of execution of a Chief Magistrate's decree of 18th May 2020 for Kshs. 2,511,04.50 pending the hearing of his appeal. His earlier stay applications had been dismissed by the Chief Magistrate's Court, and a similar application before the High Court (F. Muchemi, J.) was struck out as res judicata on 11th March 2021. He then moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. Counsel for the applicant also urged a recent development: in Civil Appeal Nos. 259 of 2002 and 337 of 2002 the Court had determined that the respondent was not a son of the deceased, and the grant giving him locus standi had been revoked. The Court declined to make any determinative finding on the respondent's capacity, holding that Rule 5(2)(b) applications exist to preserve the subject matter of an appeal, not to issue dispositive orders that would render the substantive appeal otiose. On the merits, the Court held that its Rule 5(2)(b) jurisdiction flows from a Notice of Appeal filed under Rule 75 in respect of the impugned decision; the Notice of Appeal on file challenged only the High Court's res judicata ruling, not the Chief Magistrate's decree, so the Court lacked jurisdiction to stay that decree. Further, following Western College v Oranga, stay cannot issue in respect of negative orders such as a striking-out. The application was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction to stay a decree not the subject of a Notice of Appeal

Holding

The Court has no jurisdiction under Rule 5(2)(b) to stay the Chief Magistrate's decree because the Notice of Appeal on file challenges only the High Court's res judicata ruling.

Reasoning

Rule 5(2)(b) jurisdiction is anchored on a Notice of Appeal filed under Rule 75 in respect of the impugned decision. Here the Notice of Appeal was against the High Court ruling striking out the stay application as res judicata; no Notice of Appeal existed against the Chief Magistrate's decree, so the Court could not stay it.

p. 2
02

Stay of negative orders

Holding

A striking-out order is a negative order that cannot be stayed.

Reasoning

The learned Judge merely struck out the applicant's application; no party was ordered to perform any act. Following Western College of Arts and Applied Sciences v EP Oranga, stay orders cannot issue in respect of negative orders, so the striking out could not be stayed.

p. 2
03

Limits of Rule 5(2)(b) applications on change of circumstances

Holding

The Court declined to make determinative findings on the respondent's loss of locus standi, as such findings belong to the substantive appeal.

Reasoning

Although the respondent's grant had been revoked in related appeals, the Court held that Rule 5(2)(b) applications serve to preserve the subject matter, not to issue dispositive orders that would render the substantive appeal otiose or embarrass the court seized of it.

p. 2

Legal principles established

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  • The Court of Appeal's jurisdiction under Rule 5(2)(b) arises from a Notice of Appeal duly filed under Rule 75, and must be in respect of the impugned decision appealed from.
  • Stay orders cannot issue in respect of negative orders where the court has not ordered any party to perform any task.
  • Rule 5(2)(b) applications are for interlocutory orders preserving the subject matter of the appeal, not dispositive orders.

Court orders

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  1. 1.The application is dismissed with no order as to costs

Authorities

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Legislation

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

Cases cited (3)

  • Central Bank of Kenya Deposit Protection Fund Board v. Uhuru Highway Development Ltd & Others
    CA No. 95 of 1999

    Court should eschew determinative findings on interlocutory applications lest it embarrass the court seized of the substantive appeal.

  • Safaricom Ltd vs Ocean View Beach Hotel Ltd & 2 Others
    [2010] eKLR

    Rule 5(2)(b) jurisdiction arises from a Notice of Appeal duly filed under Rule 75.

  • Western College of Arts and Applied Sciences vs EP Oranga & 3 Others
    [1976] eKLR

    Stay orders cannot issue in respect of negative orders.

On appeal from
High Court of Kenya at Nyeri
HCCA No. 19 of 2020
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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Later judgments citing this (2)

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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, "Charles Mwangi Gitundu v Charles Wanjohi Wathuku", Case Analysis (2022). Civil Application E024 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/959/eng@2022-08-26

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