Moraa Masare & 4 others v Geoffrey Matoke [2019] KEELC 2180 (KLR)
The bottom line
#The High Court refused to lift a stay of execution, ruling that once stay is granted, only the Court of Appeal can handle the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court could vary or discharge its own stay orders of 19th February 2014
The court could not; having granted the stay it became functus officio and jurisdiction vested in the Court of Appeal.
The court found the stay was conditioned on the deposit of Kshs. 500,000/= as security, an inhibition against the parcels, and maintenance of status quo. Since the security deposit was actually placed on 13th March 2014, the conditions were met and the stay had to subsist until the intended appeal was heard and determined. Any further dealings belonged to the Court of Appeal.
Whether an appeal was pending despite no Record of Appeal having been filed
Yes; a Notice of Appeal is deemed to constitute an appeal under Order 46 Rule (4) of the Civil Procedure Rules, 2010.
The court held that unless the Notice of Appeal is struck out, the appeal is deemed pending in the Court of Appeal notwithstanding the absence of a Record of Appeal. The Applicant's remedy for delay lay in Rules 83 or 84 of the Court of Appeal Rules, not in this court.
Whether the court could adjudicate the Appellants' delay in filing the record of appeal
No; that issue is the preserve of the Court of Appeal.
The court acknowledged there may have been unexplained delay by the Appellants, but held it lacked competence to adjudicate that question, as only the Court of Appeal can determine whether to admit the appeal once filed, including under its default rules.
Legal principles established
#- Once a court grants a stay of execution pending appeal it becomes functus officio and jurisdiction over the matter vests in the appellate court
- Under Order 46 Rule (4) of the Civil Procedure Rules, 2010, a Notice of Appeal is deemed to constitute an appeal and an appeal is deemed pending even without a Record of Appeal
- A party aggrieved by inordinate delay in instituting an appeal should apply under Rules 83 or 84 of the Court of Appeal Rules
Court orders
#- 1.The Notice of Motion dated 22nd March 2019 is dismissed
- 2.Costs of the application awarded to the Appellants/Respondents
- On appeal from
- Court of Appeal
- Not stated
- Jurisdiction invoked
- Section 34 of the Civil Procedure Act Cap 21 Laws of Kenya (application to discharge, vary or set aside stay orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moraa Masare & 4 others v Geoffrey Matoke [2019] KEELC 2180 (KLR)", Case Analysis (2019). Appeal No 44 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2180/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.