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Court of AppealDismissedCivil Application No. (notice of motion dated April 27, 2021) arising from ELCC No. 362 of 2017· [2023] KECA 190 (KLR)

China Wu Yi Co Ltd v Belgo Holdings Ltd (Civil Application E239 of 2021) [2023] KECA 190 (KLR)

Court of Appeal
17 February 2023
2,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out China Wu Yi's application for stay because its notice of appeal didn't match the appeal it wanted to protect—and a dismissal order has nothing to stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'inoti, Laibuta and Gachoka, JJ.A) delivered on February 17, 2023 on China Wu Yi Co. Ltd's notice of motion dated April 27, 2021 seeking stay of execution of consent orders recorded in ELC Suit No. 362 of 2017 on June 16 and June 22, 2017, or alternatively stay of proceedings, pending the hearing of Civil Appeal No. 536 of 2021 (Kenya Urban Roads Authority v. Belgo Holdings Ltd.). The consent orders had compromised the ELC suit on terms including payment of additional rent of Kshs 607,500 per month contingent on the ELC holding that Belgo owned the entire suit property in ELC Suit No. 545 of 2012. When the ELC (Komingoi, J.) dismissed the applicant's application to set aside the consent orders by a ruling dated March 18, 2021, the applicant filed a notice of appeal against that ruling and the present stay application. The Court of Appeal held it had no jurisdiction under rule 5(2)(b) of the Court of Appeal Rules because the notice of appeal on record - the foundation of its jurisdiction - related to the ruling in ELCC No. 362 of 2017, whereas the appeal the applicant sought to preserve arose from the judgment in ELCC No. 545 of 2012, in a different suit to which the applicant was not even a party. In any event, the ruling of March 18, 2021 was a negative order merely dismissing an application, incapable of being stayed. The application was struck out with costs to the respondent. The respondent's cross-application to strike out the notice and record of appeal was not before the Court for determination, no submissions having been filed on it.

Key legal issues

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01

Whether the notice of appeal confers jurisdiction over the stay application

Holding

The Court had no jurisdiction because the notice of appeal dated March 18, 2021 challenged the ruling in ELCC No. 362 of 2017, while the appeal the applicant sought to preserve arose from the judgment in ELCC No. 545 of 2012, a different suit to which the applicant was not even a party.

Reasoning

Rule 5(2)(b) jurisdiction is triggered by a notice of appeal on record. The notice of appeal is the foundation of the Court's jurisdiction on a stay application and must correspond to the appeal said to be arguable and at risk of being rendered nugatory. Here the notice of appeal and the appeal in respect of which stay was sought arose from two different decisions - a ruling and a judgment - in two different suits that were neither consolidated nor heard together, so the Court was not properly seized of the matter.

p. 4
02

Whether the ruling of March 18, 2021 was capable of being stayed

Holding

No. The ruling merely dismissed the applicant's application to set aside the consent orders; it was a negative order containing no command capable of execution, and therefore nothing to stay.

Reasoning

The Court invoked its long-standing line of authority, beginning with Western College of Arts & Applied Sciences v. Oranga, that where the court below has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing arising from that judgment for an appellate court to enforce or restrain by injunction in a stay application. A dismissal order is negative and not executable.

p. 4

Legal principles established

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  • Jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to entertain an application for stay of execution, stay of proceedings or injunction pending appeal requires a notice of appeal on record, and there must be a correlation between that notice of appeal and the appeal said to be arguable and liable to be rendered nugatory.
  • A negative order - one which merely dismisses an application and does not require a party to do, refrain from doing, or pay anything - is not capable of being stayed.

Court orders

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  1. 1.The applicant's notice of motion dated April 27, 2021 is struck out with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (6)

  • Safaricom Ltd. v. Ocean View Beach Hotel Ltd. & 3 others
    [2010] eKLR
  • Equity Bank Ltd v. Westlink Mbo Ltd
    [2013] eKLR
  • Orian East Africa v. Ecobank
    [2016] 1 EA 441
  • Western College of Arts & Applied Sciences v. Oranga & others
    [1976] eKLR
  • Co-operative Bank of Kenya Ltd v. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Kenya Urban Roads Authority v. Belgo Holdings Ltd. & Another
    CA No. 536 of 2021
On appeal from
Environment & Land Court
ELCC No. 362 of 2017
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, "China Wu Yi Co Ltd v Belgo Holdings Ltd (Civil Application E239 of 2021) [2023] KECA 190 (KLR)", Case Analysis (2023). Civil Application No. (notice of motion dated April 27, 2021) arising from ELCC No. 362 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/190/eng@2023-02-17

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