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Court of AppealDismissedCivil Application E002 of 2022· [2022] KECA 992 (KLR)

Toya v Ziro (Suing through Christine Ziro Mwatela vide Power of Attorney)

Court of Appeal
23 September 2022
AMA.K. MurgorPNP. NyamweyaJLJ.W. Lessit
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to halt an eviction order because the applicant never filed a Notice of Appeal against the judgment he wanted stayed.

What this practically means

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Executive summary

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The applicant, Johnson Kaviha Toya, moved the Court of Appeal at Malindi under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment and decree of the Environment and Land Court (Olola J.) dated July 30, 2021, in Malindi ELC Case No. 8 of 2007, in which he was ordered to vacate the suit property within forty-five days or face eviction. The judgment followed a suit by the respondent, who had purchased the property in a statutory sale, for vacant possession, eviction and loss of rent. The applicant's application to set aside the judgment on the ground that he was not heard in his defence was dismissed by a ruling of November 30, 2021, against which he filed an appeal, but he sought to stay the judgment itself. The Court of Appeal, in a unanimous ruling, restated the twin principles for stay: an arguable appeal and that the appeal would be rendered nugatory absent stay. It held that its jurisdiction to stay a judgment is contingent on a Notice of Appeal having been filed against that judgment within fourteen days of delivery. Since the applicant had appealed only the ruling and exhibited no Notice of Appeal against the judgment he sought to stay, he had neither demonstrated an arguable appeal nor filed a competent application. The nugatory limb was not reached. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the applicant demonstrated an arguable appeal against the judgment he sought to stay

Holding

No. The applicant filed no Notice of Appeal against the judgment of July 30, 2021; his appeal was against the ruling of November 30, 2021 only, so no arguable appeal against the judgment was demonstrated.

Reasoning

The court distinguished between the judgment of July 30, 2021 and the ruling of November 30, 2021. The applicant sought to stay the judgment but had appealed only the ruling. Under Rule 75 (now Rule 77), a Notice of Appeal against the judgment within 14 days was a jurisdictional prerequisite. None was exhibited, so the application was incompetent and the arguability threshold unmet.

p. 3
02

The principles governing stay of execution under Rule 5(2)(b)

Holding

The settled principles require an arguable appeal and that the appeal be rendered nugatory absent stay; the court exercises original jurisdiction under the rule.

Reasoning

The court restated the twin principles as amplified in Kinyanjui v Ketter, and noted the original jurisdiction recognised in Ruben v Nderitu. Both limbs must be satisfied; failure on the arguability limb obviates consideration of nugatory-ness.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two requirements: an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • The Court of Appeal's jurisdiction to stay a judgment is contingent on a Notice of Appeal having been filed against that judgment within 14 days of delivery.
  • A stay application seeking to stay a judgment not appealed against is incompetent, and an applicant must satisfy both limbs of the Rule 5(2)(b) test.

Court orders

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  1. 1.The Notice of Motion application dated February 3, 2022 is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal Rules 2010Rule 75
  • Court of Appeal Rules 2022Rule 77

Cases cited (6)

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

    Restatement and amplification of the twin principles for stay under Rule 5(2)(b)

  • Ruben & 9 others vs Nderitu & another
    (1989) KLR 459

    That the court exercises original jurisdiction under Rule 5(2)(b)

  • Dennis Mogambi Mang’are vs Attorney General & 3 others
    Civil Application No Nai. 265 of 2011

    An arguable appeal need not necessarily succeed; it need only be deserving of consideration

  • Aquinas Wasike v Absa Bank, Regent Auctioneers, Titus Koleyo
    (2021) eKLR

    Requirement to satisfy both limbs for stay of execution

  • Halai & another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365

    Confirmation of the Rule 5(2)(b) requirement of a Notice of Appeal against the judgment sought to be stayed

  • Nguruman Ltd v Shompole Group Ranch & another
    [2014] eKLR

    Support for the incompetence of a stay application against a judgment not appealed against

On appeal from
Environment and Land Court at Malindi
Malindi ELC Case No. 8 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction of the Court of Appeal to grant stay of execution pending appeal)

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, "Toya v Ziro (Suing through Christine Ziro Mwatela vide Power of Attorney)", Case Analysis (2022). Civil Application E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/992/eng@2022-09-23

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