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Court of AppealStruck OutNotice of Motion dated 24th November, 2023 (arising from Civil Appeal No. 33 of 2019)

Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1455 (KLR)

Court of Appeal of Kenya
18 October 2024
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
1,159 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it cannot stop execution of a judgment unless there is a live appeal, and dismissed late restoration applications.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th November, 2023, Risper Akeyo Oginga sought a temporary stay of execution of the decree in Migori ELC No. 192 of 2017, a suit in which Titus Kahunyoro Moko had obtained judgment in the Environment and Land Court for recovery of suit property over an unpaid balance of purchase price under a decree adopted from the Rongo Magistrate's Court following a Land Disputes Tribunal decision. The application was anchored on Civil Appeal No. 33 of 2019, described as pending the delivery of a ruling. The respondent opposed, producing a certified copy of an order of this Court dated 23rd February, 2021 showing that the appeal had been dismissed under Rule 102(1) of the Court of Appeal Rules, 2010, after neither the applicant nor her advocate attended the hearing; they attributed the absence to illness. The Court (Okwengu, Omondi and Ngugi, JJA) held that stay of execution is predicated on a pending appeal, and since the appeal had been dismissed, it had no jurisdiction to grant stay. It further observed that although the applicant's submissions invoked Rule 102(2) & (3) for restoration, the motion did not actually seek restoration, and in any event such an application was required to be filed within 30 days of the dismissal under Rule 102(3), which the motion, filed on 24th November, 2023, plainly was not. The application was accordingly struck out with costs to the respondent. This is a single judgment of the whole bench; it binds subordinate courts and the High Court on the requirement of a pending appeal for stay of execution.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to grant a stay of execution of the ELC decree in the absence of a pending appeal
  2. 2.Whether the application, purporting to be brought under Rule 102(2) & (3) of the Court of Appeal Rules, could sustain a stay of execution
  3. 3.Whether an application for restoration of an appeal dismissed under Rule 102(1), filed long after the 30-day window, is competent

Key legal issues

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01

Whether a stay of execution may issue where the underlying appeal has been dismissed

Holding

Stay of execution is an incident of a pending appeal; once the appeal was dismissed on 23rd February, 2021, the Court lacked jurisdiction to grant stay, making the motion incompetent.

Reasoning

The applicant's motion sought stay of the ELC decree 'pending the delivery of the ruling in Court of Appeal No. 33 of 2019'. The respondent produced a certified copy of the order dismissing that appeal under Rule 102(1) for non-attendance. Since the appeal was no longer pending, there was no appeal to anchor the stay, and the Court held the motion incompetent for want of jurisdiction.

02

Whether the applicant could invoke Rule 102(2) & (3) to restore the dismissed appeal

Holding

Even assuming restoration had been sought, the application was fatally out of time, as Rule 102(3) required filing within 30 days of the dismissal decision.

Reasoning

The motion did not on its face seek restoration but only stay of execution. Even if the submissions were treated as seeking restoration under Rule 102(2) & (3), the dismissal order was made on 23rd February, 2021, while the motion was filed on 24th November, 2023, far outside the 30-day window prescribed by Rule 102(3), rendering it incompetent.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction to grant a stay of execution of a decree of the High Court or a court of equal status where there is no pending appeal against that judgment.
  • An application to restore an appeal dismissed for non-attendance under Rule 102(1) must be filed within 30 days of the dismissal; a restoration application filed outside that period is incompetent.

Court orders

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  1. 1.The application dated 24th November, 2023 was struck out with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
HO
majority
JN
majority
On appeal from
Environment and Land Court at Migori
ELC No. 192 of 2017
Jurisdiction invoked
Court of Appeal Rules, 2010, Rule 102 (including proviso to sub-rule (1) and sub-rules (2) and (3)); the Court's inherent jurisdiction to grant stay under the Court of Appeal Rules in the context of a pending appeal

Relief refused

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Temporary stay of execution of the decree in Migori ELC No. 192 of 2017

The appeal anchoring the stay (Civil Appeal No. 33 of 2019) had already been dismissed under Rule 102(1) on 23rd February, 2021, and the Court has no jurisdiction to grant stay in the absence of a pending appeal

p. 3

Restoration of the dismissed appeal for hearing on merit

Rule 102(3) requires a restoration application within 30 days of the dismissal; the motion was filed on 24th November, 2023, nearly three years after the dismissal of 23rd February, 2021

p. 3

Costs

Costs of the application to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicant's motion is incompetent, as the Court has no jurisdiction to grant an order of stay of execution of a judgment of the High Court or Court of equal status in the absence of an appeal against that judgment
Jurisdiction to grant stay of execution requires a pending appeal
Rule 102(3) requires that such an application for restoration of the appeal, be filed within 30 days of the decision of this Court dismissing the appeal
p. 3Time limit for restoration of appeal dismissed under Rule 102(1)
For these reasons, the application before us is incompetent and is accordingly struck out with costs to the respondent.
p. 3Final orders - striking out of the application

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, "Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1455 (KLR)", Case Analysis (2024). Notice of Motion dated 24th November, 2023 (arising from Civil Appeal No. 33 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1455/eng@2024-10-18

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