John Thuo Macharia v Elizabeth Muthoni Kihonge
The bottom line
#The Court of Appeal struck out a stay application because the appellant never filed a Notice of Appeal — without that document, the court had no power to help him.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay under Rule 5(2)(b) in the absence of a Notice of Appeal
The Court lacked jurisdiction to determine the application because no Notice of Appeal was on record, and the application was accordingly struck out
Rule 5(2)(b) read with Rule 77 permits stay applications only once a Notice of Appeal has been lodged. The applicant did not annex any Notice of Appeal, did not plead it, and his assertion from the bar that one was filed on 5th October 2022 amounted to giving evidence without proof. The respondent's unrebuted averment of non-service reinforced the absence of a valid Notice. Lacking the jurisdictional foundation, the Court could not make one more step.
Burden of proving a valid Notice of Appeal
The onus rests on the applicant and was not discharged
Applying section 107 of the Evidence Act, the Court held that the applicant bore the burden of proving the existence of a valid Notice of Appeal. The applicant neither exhibited the document nor alluded to it in his pleadings, and counsel's oral statement from the bar could not constitute proof. The respondent's assertion that she was never served was not rebutted.
Costs of the application
Costs follow the event; the applicant pays the respondent's costs
The Court found no reason to depart from the ordinary rule that costs follow the event. Since the application was struck out, the applicant was ordered to meet the respondent's costs of the application.
Legal principles established
#- The jurisdiction of the Court of Appeal under Rule 5(2)(b) to order a stay of execution is unlocked only by the lodging of a Notice of Appeal; without it the Court has no power to entertain the application
- The burden of proving the existence of a valid Notice of Appeal lies on the applicant invoking the Court's appellate jurisdiction
- A court without jurisdiction must down tools at once and take no further step in the matter
Court orders
#- 1.The notice of motion dated 17th October 2022 is struck out
- 2.The applicant shall meet the respondent's costs of the application
- On appeal from
- Environment and Land Court at Nyahururu
- Nyahururu E&LC Case No 57 of 2019 (formerly Nakuru HCCC No 112 of 2003)
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2022 (as read with Rule 77)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Thuo Macharia v Elizabeth Muthoni Kihonge", Case Analysis (2023). Nyahururu Civil Application No. E048 of 2022 (Notice of Motion dated 17th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1193/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.