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Court of AppealStruck OutNot stated in the judgment

Oyatsi v Nzoia Sugar Company Ltd (Civil Appeal (Application) 47 of 2012) [2026] KECA 1252 (KLR)

Court of Appeal
3 July 2026
3,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a stay application, confirming it cannot stop execution of its own delivered judgment when no appeal is pending.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal by notice of motion dated 2nd December 2025 seeking a stay of execution of the Court's own judgment in Civil Appeal No. 47 of 2012, dated 8th March 2019, which he contended was a nullity because it was purportedly delivered in the absence of the parties by Murgor, JA., who was not a member of the bench that heard the appeal, and contrary to a prior notice fixing delivery for 7th June 2019. The motion was premised on sections 3 and 4 of the Appellate Jurisdiction Act and Rules 4(2)(b) and 5(3)(b) of the Court of Appeal Rules. The respondent raised a preliminary objection contending the Court was functus officio, had no jurisdiction to stay its own judgment absent a pending appeal or notice of appeal, and that the motion rested on non-existent rules and was an abuse of process. The respondent also showed the applicant had shuttled between the Supreme Court (application dismissed 8th December 2023 with costs) and the ELRC (ruling 27th November 2025 dismissing for want of jurisdiction) seeking the same relief, while a review application dated 20th April 2021 remained pending before the Court. Hearing the preliminary objection first on the Lillian S principle, the Court held that jurisdiction under Rule 5(2)(b) arises only where a notice of appeal has been lodged; here there was none, and the appeal had already been determined. The argument that a pending review application could anchor the motion was rejected. The Court found the application incompetent and struck it out with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to grant a stay of execution of its own judgment of 8th March 2019 in the absence of a notice of appeal or pending appeal
  2. 2.Whether the Court is functus officio having rendered its judgment on 8th March 2019
  3. 3.Whether the motion premised on non-existent rules (Rules 4(2)(b) and 5(3)(b)) properly invoked the Court's jurisdiction

Key legal issues

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01

Whether the Court has jurisdiction under Rule 5(2)(b) to stay execution of its own delivered judgment

Holding

No jurisdiction exists because no notice of appeal has been filed and the appeal in Civil Appeal No. 47 of 2012 was already determined.

Reasoning

Rule 5(2)(b) confers jurisdiction only where a notice of appeal has been lodged under Rule 77. The judgment relied on Githunguri v Jimba Credit Corporation (No 2) and Halai v Thornton & Turpin (1963) Ltd to restate that without a notice of appeal the Court cannot entertain a stay application. A pending application for review cannot anchor a stay under Rule 5(2)(b).

p. 6
02

Whether a pending application for review can sustain a Rule 5(2)(b) application

Holding

It cannot; the argument that the motion is anchored on a pending review application was rejected as esoteric and unconventional.

Reasoning

The applicant argued that if the pending review succeeds, the judgment would be a nullity and the appeal would still be pending. The Court held that Rule 5(2)(b) is designed for interim relief pending determination of appeals; once the Court has its decision on the appeal, it cannot in reason grant such relief, and it deliberately declined to comment on the merits of the invalidity complaints.

p. 7
03

The effect of founding an application on non-existent rules

Holding

Counsel conceded the motion was premised on non-existent provisions, claiming typographical error; the Court overlooked the error since the real question was lack of jurisdiction.

Reasoning

The respondent's preliminary objection argued that invoking non-existent rules divests the Court of jurisdiction, relying on Michael Mungai v Housing Finance. The Court noted the concession and typographical-error claim, overlooked the defect, but found the application incompetent on the more fundamental ground of absence of jurisdiction.

p. 5

Legal principles established

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  • The Court of Appeal only acquires jurisdiction under Rule 5(2)(b) if a notice of appeal has been filed; it cannot grant stay of execution of its own concluded judgment in the absence of a pending or intended appeal.
  • Rule 5(2)(b) is designed to grant interim relief pending hearing and determination of appeals; once the Court has rendered its decision on the appeal, it cannot grant such relief.
  • A court seized of a matter in which the question of jurisdiction is raised must decide that issue first on the material before it.

Court orders

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  1. 1.The application is struck out with costs to the respondent

The bench

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

majority
majority
majority
Jurisdiction invoked
Rules 4(2)(b) and 5(3)(b) of the Court of Appeal Rules (invoked by applicant but held non-existent); Rule 5(2)(b) of the Court of Appeal Rules 2022

Relief refused

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Stay of execution of the judgment in Civil Appeal No. 47 of 2012 dated 8th March 2019

No notice of appeal or pending appeal exists to anchor the application; the appeal was already determined, so the Court has no jurisdiction under Rule 5(2)(b)

p. 6

Costs

The application is struck out with costs 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.

We take the firm view that Rule 5(2)(b) is designed to grant interim relief pending the hearing and determination of appeals to this Court.
p. 6Scope of Rule 5(2)(b) jurisdiction
There being no notice of appeal or intended appeal before this Court, we entertain no doubt that this Court has no jurisdiction to determine the instant application.
p. 6Jurisdictional threshold for stay applications
Given our finding that this application does not lie, the same is incompetent. We accordingly strike it out with costs to the respondent.
p. 7Final orders
It is trite that a stay of execution order lies at the discretion of the Court, to be exercised on a case by case basis, with a view to attaining the ends of justice.
p. 4Discretionary nature of stay

Issues in the judgment

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minor

The caseTitle and caseNumber of the application are not stated in the judgment; the judgment only references the underlying appeal as Civil Appeal No. 47 of 2012.

minor

The judgment says the motion was 'ostensibly brought under, sections 3 and 4 of the Appellate Jurisdiction Act, and Rules 4(2)(b) and 5(3)(b)' which the Court elsewhere describes as non-existent rules, while the respondent's preliminary objection refers to 'Rule 5(2)(b)' as the correct provision in one ground but the notice of preliminary objection itself appears to cite 'Rule 5(2)(b)' and 'Rules 4(2)(b) and 5(3)(b)' variously.

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, "Oyatsi v Nzoia Sugar Company Ltd (Civil Appeal (Application) 47 of 2012) [2026] KECA 1252 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1252/eng@2026-07-03

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