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Court of AppealDismissedCivil Application No. E239 of 2022 (Nairobi)· [2023] KECA 180 (KLR)

Phieddippieds Chimsen Ndiema v Patrick Wahome Rugara

Court of Appeal
17 February 2023
1,875 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop enforcement of a land judgment because the appellant never filed a notice of appeal - a critical procedural step.

What this practically means

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Executive summary

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The Appellant moved the Court of Appeal by notice of motion dated August 30, 2022 seeking a stay of execution of the judgment and orders of Hon Justice EK Wabwoto delivered on May 5, 2022 in Nairobi ELC 466 of 2016, in which the Appellant's title to Plot No 204/Title No Ruiru/Kiu Block 2 (Githunguri)/4866 was cancelled and a fresh title issued to the Respondent, who has lived on the property with his family since 2015. The application was founded on Sections 1A, 3A and 63(a) of the Civil Procedure Act and Orders 42 Rule 6(1) and 51 Rule 1 of the Civil Procedure Rules. The Respondent opposed, arguing the Court lacked jurisdiction because no notice of appeal had been lodged in the superior court, that the application was brought under the wrong legal premise, and that the orders were overtaken by events since a new title had issued and he remained in possession. The Court held that the correct basis for a stay application before it is Rule 5(2)(b) of the Court of Appeal Rules, whose jurisdiction is original and unfettered but is invoked only by filing a notice of appeal. Applying Safaricom Ltd v Ocean View Beach Hotel Ltd and Githunguri v Jimba Credit Corporation Ltd (No.2), the Court found that no notice of appeal had been filed and that the memorandum of appeal on record was not the appropriate instrument of appeal. Without the notice, the Court could not exercise its discretionary power and declined to consider the merits. The application was dismissed with costs.

Key legal issues

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01

Whether the Court has jurisdiction under Rule 5(2)(b) absent a filed notice of appeal

Holding

No. Filing of the notice of appeal is what gives the Court jurisdiction to hear a Rule 5(2)(b) motion; the Appellant filed none, only a memorandum of appeal, so the Court's discretionary power cannot be exercised

Reasoning

Rule 5(2)(b) confers an original, independent discretion on the Court, but that jurisdiction is anchored in the lodging of a notice of appeal under Rule 75. Following Safaricom Ltd v Ocean View Beach Hotel Ltd and Githunguri v Jimba Credit Corporation, the Court held that absent a notice of appeal there is neither an appeal nor a manifested intention to appeal, leaving nothing on which the Rule can operate. The Appellant, though counsel-represented, relied on the wrong instrument.

p. 4
02

Whether the application was founded on the correct legal premise

Holding

No. The Appellant's reliance on Sections 1A, 3A and 63(a) of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules was misplaced; the correct basis is Rule 5(2)(b) of the Court of Appeal Rules

Reasoning

The Court held that the Appellant was misdirected on the law applicable to stay applications in the Court of Appeal. The Civil Procedure Act and Rules govern the superior court, not the Court of Appeal, whose power to grant interim civil relief pendente lite derives solely from Rule 5(2)(b). Because the Court found the jurisdictional premise failed, it declined to reach the merits of arguability and nugatory-ness.

p. 3

Legal principles established

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  • Jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules is original and unfettered but is invoked only by filing a notice of appeal; without one, the Court has no jurisdiction to grant stay, injunction or stay of further proceedings
  • Where no actual appeal is on file, there must at least be a lodged notice of appeal manifesting an intention to appeal; absent that, the Court of Appeal cannot meddle in the decision of the Superior Court
  • A memorandum of appeal is not the appropriate instrument of appeal and does not satisfy the rules for filing a civil appeal in the Court of Appeal

Court orders

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  1. 1.The Notice of Motion application dated August 30, 2022 is dismissed
  2. 2.The Appellant to pay the costs of the application
On appeal from
Environment and Land Court
Nairobi ELC 466 of 2016
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, "Phieddippieds Chimsen Ndiema v Patrick Wahome Rugara", Case Analysis (2023). Civil Application No. E239 of 2022 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/180/eng@2023-02-17

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