Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. E463 of 2023

Registered Trustees of Ruiru Sports Club v Njeru Nyaga & Company Advocates LLP (Civil Appeal (Application) E463 of 2023) [2025] KECA 1124 (KLR)

Court of Appeal
20 June 2025
2,474 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out both sides' applications, ruling that a stay of execution requires a notice of appeal against the exact decision being challenged.

What this practically means

#

Executive summary

#
This Court of Appeal ruling (Karanja, M'Inoti and Nyamweya JJA) disposed of two interlocutory applications arising out of a judgment of the Environment and Land Court (Oguttu Mboya J.) of 31st May 2023, awarding the respondent firm of advocates Kshs. 41,289,401.80 in agreed fees against the appellant club, plus 14% interest, and a later garnishee order of 2nd November 2023 attaching funds held by the National Land Commission. The respondent applied to strike out the record of appeal as defective for omitting the subordinate court proceedings and decree; the appellant applied for a stay of execution of the garnishee orders pending appeal. The Court struck out the respondent's application: under Rule 86 of the Court of Appeal Rules, 2022 such an application must be filed within thirty days of service of the record, and the application filed on 30th January 2024, over six months after service, was out of time and incompetent. On the appellant's stay application, the Court raised a jurisdictional objection of its own: although the appeal in Civil Appeal No. E463 of 2023 challenged the ruling of 31st May 2023, no notice of appeal had been lodged against the garnishee orders of 2nd November 2023 that the stay sought to suspend. Applying Halai v Thornton & Turpin, Equity Bank v West Link MBo, Safaricom v Ocean View Beach Hotel and Nguruman v Shompole, the Court held that Rule 5(2)(b) jurisdiction exists only where a notice of appeal has been lodged against the very decision whose execution is to be stayed, and that a notice of appeal filed against one decision cannot be used to stay another. The Court therefore found itself bereft of jurisdiction, struck out both applications, and ordered each party to bear their own costs. The underlying appeal remains pending; the decretal sum has been deposited in a joint escrow account.

Questions the Court framed

#

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

  1. 1.Whether the respondent's application dated 31st January 2024 to strike out the record of appeal was filed within the time prescribed by Rule 86 of the Court of Appeal Rules, 2022
  2. 2.Whether the Court has jurisdiction under Rule 5(2)(b) to grant a stay of execution of the ELC's garnishee orders of 2nd November 2023 in the absence of a notice of appeal against those orders
  3. 3.Whether the appellant's appeal is arguable and whether it would be rendered nugatory absent a stay

Key legal issues

#
01

Timeliness of the application to strike out the record of appeal

Holding

The respondent's striking-out application, filed over six months after service of the record of appeal, was out of time under Rule 86 and incompetent, and had to be struck out.

Reasoning

Rule 86 requires a striking-out application to be filed within thirty days of service of the record of appeal. Rule 92(1) required service within seven days of lodging. The record was lodged and served in June 2023 and was not contested as being served in time; the application of 30th January 2024 was therefore far outside the thirty-day window, leaving the Court no option but to strike it out.

p. 2
02

Jurisdiction to grant stay of execution under Rule 5(2)(b)

Holding

The Court was bereft of jurisdiction to grant a stay of the 2nd November 2023 garnishee orders because no notice of appeal had been lodged against those orders.

Reasoning

Rule 5(2)(b) jurisdiction is properly invoked only where a notice of appeal has been lodged under Rule 75 within fourteen days of the orders to be appealed. The appeal in Civil Appeal No. E463 of 2023 targeted the ruling of 31st May 2023, not the garnishee orders of 2nd November 2023. Following Halai, Equity Bank, Safaricom and Nguruman, a notice of appeal in respect of one decision cannot sustain a stay of another; absent an appeal or intended appeal, the Court has no business meddling in the trial court's decision.

p. 4

Legal principles established

#
  • The Court of Appeal's jurisdiction under Rule 5(2)(b) is conditional on a notice of appeal having been lodged in respect of the specific decision whose execution is sought to be stayed; a notice of appeal lodged against one decision cannot support a stay of a different decision.
  • An application to strike out a record of appeal under Rule 86 must be filed within thirty days of service of the record of appeal; a application filed outside that period is incompetent.

Court orders

#
  1. 1.Struck out the respondent's application dated 31st January 2024
  2. 2.Struck out the appellant's application dated 24th September 2024
  3. 3.Ordered that each party shall bear their own costs of the two applications

The bench

#

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

majority
majority
majority
On appeal from
Environment and Land Court
ELC Miscellaneous Application Case No. E083 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022; jurisdiction conditional on lodgment of a notice of appeal under Rule 75

Relief refused

#

Stay of execution of the ELC's garnishee orders of 2nd November 2023

The Court had no jurisdiction as there was no notice of appeal against the orders of 2nd November 2023, the notice on record related to the earlier ruling of 31st May 2023

p. 4

Costs

Each party shall bear their own costs of the two applications.

Quotable passages

#

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

This court is properly seized of an application for stay of execution under Rule 5(2) (b) where a notice of appeal has been lodged in accordance with Rule 75 of the Court of Appeal Rules.
p. 4Prerequisite of a notice of appeal for Rule 5(2)(b) jurisdiction
there is no provision allowing a notice of appeal lodged in a later decision being used in an application for stay of execution of an earlier decision. The same reasoning would also apply to the use of a notice of appeal filed in an earlier decision to stay a later decision
p. 4A notice of appeal cannot be transposed between decisions
if there is no appeal or intended appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to meddle in the decision of the trial court
p. 4Scope of the Court of Appeal's appellate jurisdiction
We are accordingly bereft of jurisdiction to determine both the application dated 31st January 2024 filed by the respondent, and the application dated 24th September 2024 filed by appellant, for the reasons explained in this ruling. The two applications are accordingly struck out, and each party shall bear their costs of the two applications.
p. 4Final orders and costs

Issues in the judgment

#
minor

The judgment states the leave ruling granting leave to file a Supplementary Record of Appeal was delivered on 3rd December 2023, while elsewhere describing the ruling as delivered on 7th December 2023 and as part of orders of 2nd November 2023; the dates are internally inconsistent.

minor

The appellant's replying affidavit is said to have been sworn on 21st January 2025, which is also the date of its written submissions; possible typographical inconsistency.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Registered Trustees of Ruiru Sports Club v Njeru Nyaga & Company Advocates LLP (Civil Appeal (Application) E463 of 2023) [2025] KECA 1124 (KLR)", Case Analysis (2025). Civil Appeal No. E463 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1124/eng@2025-06-20

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