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Court of AppealDismissedApplication dated 19th January 2023 (Civil Application, Court of Appeal, Nakuru)· [2024] KECA 56 (KLR)

Wilson Kiprop Kibos v Francis Kigen Kirui

Court of Appeal of Kenya
2 February 2024
FSF. SichaaleLAL. AchodeWKW. Korir
1,673 words in judgment
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The bottom line

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The Court of Appeal refused to stay a magistrate's court judgment because the appeal notice pointed at a different decision, and a dismissal order has nothing to stay.

What this practically means

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Executive summary

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The applicant, Wilson Kiprop Kibos, moved the Court of Appeal at Nakuru under rule 5(2)(b) of the Court of Appeal Rules by notice of motion dated 19th January 2023 seeking stay of execution of the judgment and decree in Eldoret Chief Magistrate's Court Civil Suit No. 169 of 2018, in which the respondent had obtained judgment. The applicant had appealed that judgment to the Environment and Land Court (E&LC), which dismissed his application for stay in a ruling delivered on 23rd September 2022 by S.M. Kibunja, J.; it was against that ruling that the applicant's notice of appeal to the Court of Appeal was filed. He argued that the appeal was arguable and would be rendered nugatory by eviction, demolition of his structures, and transfer of the suit property. The respondent opposed, contending among other things that the orders complained of were negative orders incapable of being stayed and that he had taken possession of the property. The Court applied the settled rule 5(2)(b) twin tests of arguability and nugatory effect, but disposed of the motion on two antecedent grounds. First, it held that the Court's rule 5(2)(b) jurisdiction is invoked by a notice of appeal filed in respect of the impugned decision; since the notice of appeal was against the E&LC ruling while the stay sought was against the Magistrate's Court judgment, the Court was bereft of jurisdiction, there being no notice of appeal with regard to the Chief Magistrate's decree, and no direct appellate route from magistrates' courts. Second, even if directed at the E&LC ruling, a mere dismissal is a negative order with nothing capable of being stayed, following Western College of Arts and Applied Sciences v EP Oranga. The application was dismissed with costs to the respondent on 2nd February 2024 (F. Sichaale, L. Achode and W. Korir, JJ.A).

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to stay the trial court's judgment and decree

Holding

No. Rule 5(2)(b) jurisdiction is founded on a notice of appeal against the impugned decision; here the notice was against the E&LC ruling while the stay sought was against the Magistrate's Court judgment, over which the Court has no direct appellate jurisdiction.

Reasoning

The Court traced the chain of decisions: the trial court gave judgment; the applicant appealed to the E&LC, whose stay application was dismissed; the notice of appeal was filed against that E&LC ruling. Since the stay sought was of the Magistrate's Court decree, and no notice of appeal existed with respect to that decree, the Court lacked jurisdiction. It aligned itself with Gitundu v Wathuku and held that magistrate court decisions reach the Court of Appeal only on second appeal.

p. 3
02

Whether there is anything capable of being stayed even if the application were directed at the E&LC ruling

Holding

No. The E&LC Judge dismissed the stay application and made no positive order; a dismissal is a negative order incapable of being stayed, following Western College of Arts and Applied Sciences v EP Oranga.

Reasoning

The Court observed that the Judge below did not order any party to do anything or refrain from doing anything; he simply dismissed the stay application. Adopting the Western College principle, there is nothing arising from such a judgment to execute, and hence nothing for the Court to stay. This renders the application incurably defective independently of the jurisdictional objection.

p. 3

Legal principles established

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  • The Court of Appeal's jurisdiction under rule 5(2)(b) is invoked by a notice of appeal filed against the decision impugned; it cannot grant stay of a decision (such as a magistrate's court decree) against which no notice of appeal has been filed.
  • Impugned decisions from magistrates' courts must first be appealed to the High Court or courts of equal status before the Court of Appeal may be approached on second appeal.
  • A dismissal order (such as dismissal of a stay application) is a negative order; there is nothing arising from it capable of being stayed.

Court orders

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  1. 1.The notice of motion dated 19th January 2023 is dismissed with costs to the respondent
  2. 2.The applicant shall bear the costs of the application
On appeal from
Environment and Land Court, Eldoret
Eldoret E&LC ruling of 23rd September 2022 (S.M. Kibunja, J.) arising from Eldoret Chief Magistrate's Court Civil Suit No. 169 of 2018
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, "Wilson Kiprop Kibos v Francis Kigen Kirui", Case Analysis (2024). Application dated 19th January 2023 (Civil Application, Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/56/eng@2024-02-02

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