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Court of AppealDismissedCivil Application E108 of 2025

Moindi t/a Sinende Wholesalers v Trans National Bank Limited & another

Court of Appeal
10 December 2025
Mohamed Abdulahi WarsameMA WarsameJMJM MativoPGPM Gachoka
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a businessman's bid to stop an auction because his notice of appeal was invalid, so the court had no jurisdiction to help him.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) application by John Chepkoros Moindi t/a Sinende Wholesalers seeking a temporary injunction and stay of execution of a consent judgment of 8th March 2019 adopted in HCCC No. 12 of 2018 (Narok), pending an intended appeal (COACA/E168/2025) against a ruling of Kariuki, J. dated 26th June 2025 striking out his application to set aside the consent order on res judicata grounds, following Majanja, J.'s earlier striking out of a similar application in HCCCOMM E064/2023. The applicant argued the appeal was arguable, raising res judicata, the invalidity of the consent order, and Article 48 and 50(1) violations, and that the scheduled auction of his properties without Section 90 Land Act statutory notices would render the appeal nugatory. The 1st respondent objected that no valid notice of appeal had been served within seven days as required by Rule 79, that leave to serve out of time was still pending, and that damages would suffice. The Court, per Warsame, Mativo and Gachoka, JJA, held that its jurisdiction is invoked only by a valid notice of appeal; counsel admitted service on a wrong email address, and with the extension application still pending, no valid notice existed. The application was therefore incompetent and was dismissed with costs to the 1st respondent. Reasons were reserved under Rule 34(7) following dismissal on 3rd December 2025.

Questions the Court framed

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

  1. 1.Whether the applicant's intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if the orders sought are not granted
  3. 3.Whether the application is competent given the absence of a valid notice of appeal

Key legal issues

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01

Whether a valid notice of appeal is required to invoke the Court's jurisdiction under Rule 5(2)(b)

Holding

Yes; the application was incompetent because the notice of appeal was served on a wrong email address outside the 7-day period under Rule 79, and leave to serve it out of time was still pending

Reasoning

The Court held that its jurisdiction is invoked by filing a valid notice of appeal. Counsel admitted service on a wrong email address, breaching Rule 79. Since an application for leave to serve the notice out of time was still pending, no valid notice existed, so the motion stood on quick sand and had to be dismissed.

Legal principles established

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  • A valid notice of appeal is a prerequisite to the Court of Appeal's jurisdiction; an invalid notice cannot confer jurisdiction
  • Jurisdiction either exists or it does not; it cannot be conferred by consent or acquiescence of the parties

Court orders

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  1. 1.The motion dated 23rd October 2025 is dismissed with costs to the 1st respondent

The bench

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

Mohamed Abdulahi Warsame
MA WarsameJA
Currently serving
majority
JM
majority
PG
majority
On appeal from
High Court of Kenya at Narok
HCCC No. 12 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Temporary injunction restraining sale, transfer or disposal of L.R. No. Cismara/Ololunga/14681 and L.R. No. Cismara/Ololunga/12782 pending appeal

The application was incompetent for want of a valid notice of appeal, which deprived the Court of jurisdiction

p. 4

Stay of execution of the consent order/judgment dated 8th March 2019 pending appeal

Same jurisdictional defect; no valid notice of appeal on record

p. 4

Costs

The motion dated 23rd October 2025 is dismissed with costs to the 1st 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.

Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties.
p. 4Nature of jurisdiction
The upshot of the foregoing is that the instant application is incompetent for want of a valid notice of appeal, consequently, the motion dated 23rd October 2025 is dismissed with costs to the 1st respondent.
p. 4Final orders - dismissal for want of valid notice of appeal

Issues in the judgment

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minor

Salat decision dated [2004] eKLR, though the same authority is commonly dated 2013; internal dating anomaly

minor

Preliminary point said to be raised in 'grounds of appeal' though earlier described as grounds of opposition

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, "Moindi t/a Sinende Wholesalers v Trans National Bank Limited & another", Case Analysis (2025). Civil Application E108 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2200/eng@2025-12-10

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