Njoki v Wahome

of justice and the overriding objective of the appellate process that the status quo be preserved pending the determination of the appeal; (f) the respondent will not suer prejudice incapable of compensation if the orders sought are granted, whereas the applicant states that he is likely to suer substantial prejudice if execution proceeds before the appeal is determined, and; (g) the application is made in good faith and without unreasonable delay. 3. The respondent has not led a replying adavit to this application. The only replying adavit led by the respondent is dated 24th July 2026. However, a reading of this adavit shows that it is in response to a pending application led by the applicant dated 8th June 2026 in which the applicant seeks enlargement of time to le a notice of appeal out of time. 4. It is evident that the applicant led two applications, the present application dated 6th July 2026 in which he seeks stay of the judgment/decree issued in Nyahururu Magistrate's Court ELC Case No. E031 of 2025 and the earlier application dated 8th June 2026 seeking leave to le his notice of appeal out of time. To our mind, an applicant cannot eectively prosecute an application for a stay of execution under Rule 5( 2)(b) of the Court of Appeal Rules, 2022 if they do not have a valid, subsisting notice of appeal. A notice of appeal is the primary jurisdictional trigger that allows the Court of Appeal to entertain an application under Rule 5 (2) (b). Without a valid notice of appeal formally lodged in the trial court, the Court of Appeal lacks the jurisdiction to grant interim reliefs like stays of execution, stay of proceedings or injunctions. (See the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR). 5. This Court’s jurisdiction to entertain an application for stay of execution, stay of proceedings or an injunction under Rule 5(2) (b) is predicated entirely upon an existing valid notice of appeal. It is a competent notice of appeal that triggers the jurisdiction of this Court. This position has been established in numerous cases of this Court such as Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR, in which this Court was emphatic that it has no business entertaining an application under Rule 5 (2) (b) unless an intention to appeal is manifested by lodging a valid notice of appeal. 6. To normalize their standing without risking execution, an applicant must follow a strict legal sequence as follows: (a) File the Rule 4 application rst. File for an extension of time to lodge the notice of appeal out of time before a single Judge. The Court of Appeal lacks jurisdiction to entertain a Rule 5 (2) (b) application until Rule 4 is successfully invoked. (b) formalize the notice of appeal. Once the single Judge grants the extension of time under Rule 4, the notice of appeal is formally led and deemed valid. (c) Prosecute the Rule 5 (2) (b) application. With a valid notice of appeal secured, the applicant can now properly invoke the jurisdiction of the full bench to argue the substantive stay of execution. 7. It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them. In this case, the applicant put the cart in front of the horse. He should prosecute his Rule 4 application rst before approaching this Court under Rule 5 (2) (b). This is because if an application for an extension of time under Rule 4 fails, it acts as a total and nal bar to a Rule 5 (2) (b) application for a stay of execution, injunction or stay of proceedings. 8. This Court has established in numerous decisions that Rule 5( 2) (b) does not confer independent jurisdiction on the Court. It is parasitic and dependent on the existence of a valid, intended appeal. (See Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1775/eng@2026-09-25 2

page 2 of 3

9. However, there is one more pertinent point which we wish to address. The applicant is primarily asking this Court to stay execution before the Magistrate’s Court. Such applications are very common in this Court, some led by advocates. Under Kenya's judicial hierarchy, the Court of Appeal does not possess direct supervisory jurisdiction or administrative control over subordinate courts such as the Magistrates' Courts. (See Odidio Spark Limited vs. Kenya Commercial Bank (Civil Appeal (Application) E422 of 2021) [2022] KECA 426 (KLR) (4 March 2022) (Ruling) Neutral citation: [2022] KECA 426 (KLR)). 10. This Court’s jurisdiction is primarily appellate, dealing with appeals arising from the High Court, the Employment and Labour Relations Court (ELRC), and the Environment and Land Court (ELC). This Court in Odidio Spark Limited vs. Kenya Commercial Bank (Supra) explicitly held that an application inviting it to stay proceedings before a Magistrate’s Court is incompetent because the Court of Appeal lacks direct supervisory powers over the trial Magistrate’s Court. Under Article 165 (6) of the Constitution, supervisory jurisdiction over subordinate courts is vested exclusively in the High Court. 11. While a litigant cannot le an application in the Court of Appeal to directly freeze a Magistrate's case, a stay of the Magistrate's proceedings can happen indirectly through the following sequence: (a) A party aggrieved by a Magistrate's interlocutory decision or ruling rst les an appeal or a judicial review application at the High Court, the Environment and Land Court or the Employment and Labour Relations Court. (b) The High Court either grants or denies a stay of the Magistrate's proceedings. (c) The aggrieved party then appeals that specic decision from the High Court or courts of equal status to the Court of Appeal. (c) Under Rule 5 (2) (b) of the Court of Appeal Rules, the Court of Appeal has the power to grant a stay of execution, an injunction or a stay of proceedings pending the determination of the appeal before it. If the underlying matter originates from a Magistrate's le, the Court of Appeal's order staying the High Court's orders or proceedings will eectively freeze or dictate the status of the related trial at the Magistrates' Court. To approach the Court of Appeal, there must already be an active, appealable order or ruling extracted from the High Court or courts of equal status. 12. We have said enough to demonstrate that the applicant’s application is a non-starter. Accordingly, we dismiss the application dated 6th July 2026 with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I conrm that this is a true copy of the original Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1775/eng@2026-09-25 3

page 3 of 3