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Court of AppealStruck OutNyeri Civil Application (Court of Appeal, Nyeri) arising from HCFP&A/E010/2022· [2025] KECA 1270 (KLR)

Virginiah Wairimu Mwangi Wachira v Peter Muriithi Wanjohi & 4 others

Court of Appeal of Kenya
4 July 2025
SKS. ole KANTAIJLJ. LESIITAAALI – ARONI
1,048 words in judgment
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The bottom line

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The Court of Appeal struck out a stay application because no notice of appeal had been filed against the specific order the applicant wanted stayed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kantai, Lesiit and Ali-Aroni, JJA) delivered on 4th July 2025 on a Notice of Motion dated 27th November 2024. The applicant sought a stay of execution of orders issued on 17th October 2024 by Magare, J. in Nyeri HCFP&A/E010/2022 (In the Estate of John Mwangi Wachira), and a stay of proceedings in that cause, pending the hearing of the respondents' appeal being Civil Appeal No. E010 of 2024, Peter Muriithi Wanjohi & 4 Others v Virginiah Wairimu Mwangi Wachira. The application was grounded on section 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules. The applicant contended that the High Court was functus officio, that the 17th October 2024 orders overturned and contradicted the judgment of Muchemi, J. of 16th November 2023, and that the proceedings offended res judicata, the suit property having already been transmitted to beneficiaries. The Court raised a preliminary jurisdictional issue of its own motion: the pending appeal challenges only the Muchemi, J. judgment; no notice of appeal was filed against the 17th October 2024 orders of Magare, J., which the applicant admitted. Relying on rule 77, rule 5(2)(b), Halai & Another v Thornton & Turpin [1963] Ltd and Equity Bank Ltd v West Link MBO Ltd, the Court held that a competent notice of appeal is a condition precedent to invoking rule 5(2)(b) powers. Lacking jurisdiction, it struck out the application with costs to the respondents. The substantive functus officio and res judicata arguments were not determined.

Key legal issues

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Whether rule 5(2)(b) jurisdiction exists absent a notice of appeal against the order sought to be stayed

Holding

It does not; the application was struck out for want of jurisdiction because no notice of appeal was filed against the orders of 17th October 2024.

Reasoning

Rule 5(2)(b) permits a stay only 'in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77'. Following Halai & Another v Thornton & Turpin [1963] Ltd and Equity Bank Ltd v West Link MBO Ltd, the filing of a notice of appeal is a condition precedent to invoking the Court's incidental stay powers. The applicant admitted no notice of appeal was filed against the Magare, J. order of 17th October 2024; the pending appeal (E010 of 2024) challenges only the Muchemi, J. judgment. The stay sought related to an order not appealed against, rendering the application incompetent.

p. 3

Legal principles established

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  • The Court of Appeal cannot exercise jurisdiction under rule 5(2)(b) unless a competent notice of appeal has been filed against the decision sought to be stayed; the notice of appeal is a condition precedent.
  • Jurisdiction to stay under rule 5(2)(b) is contingent on a notice of appeal having been filed within 14 days pursuant to rule 77 of the Court of Appeal Rules.

Court orders

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  1. 1.The Notice of Motion dated 27th November 2024 is struck out
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nyeri
HCFP&A/E010/2022 (In the Estate of John Mwangi Wachira)
Jurisdiction invoked
Section 3 and 3A of the Appellate Jurisdiction Act and 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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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Virginiah Wairimu Mwangi Wachira v Peter Muriithi Wanjohi & 4 others", Case Analysis (2025). Nyeri Civil Application (Court of Appeal, Nyeri) arising from HCFP&A/E010/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1270/eng@2025-07-04

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