https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1252

Oyatsi v Nzoia Sugar Company Ltd (Civil Appeal (Application) 47 of 2012) [2026] KECA 1252 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1252 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) 47 of 2012 DK Musinga, PO Kiage & AO Muchelule, JJA July 3, 2026 Between Francis Oyatsi Applicant and Nzoia Sugar Company Limited Respondent ((An application for stay of execution of the Judgment of the Court of Appeal at Nairobi (Ouko, Asike-Makhandia, Gatembu Kairu, JJ.A) dated 8th March, 2019 in Civil Appeal No. 47 of 2012) Ruling 1.The applicant by the motion dated 2nd December 2025, ostensibly brought under, sections 3 and 4 of the Appellate Jurisdiction Act, and Rules 4(2)(b) and 5(3)(b) of the Court of Appeal Rules, seeks in the main, the following order;“3.That pending the inter-parties hearing of the application, there be stay of execution of the judgment or purported judgment in Civil Appeal No. 47 of 2012 dated 8th March 2019 and published on the website of the Kenya Law Reports without being delivered in accordance with Rule 32 of the Court of Appeal Rules.” 2.The motion is founded on grounds on the face of it and is supported by an affidavit sworn by the applicant on 2nd December 2025. The applicant avers that pursuant to Rule 32 of the Court’s Rules, there is no valid judgment delivered in Civil Appeal No. 47 of 2012. He explains that by a notice of delivery of judgment issued on 4th March 2019, the Court notified parties that judgment in the appeal would be delivered on 7th June 2019; judgment was however not delivered on that date and no other notice fixing another date for delivery was issued; on 30th October 2019, his advocates received a letter from the respondent’s advocates dated 29th October 2019, informing them that there was a judgment in the appeal, which they had picked from the website of the Kenya Law Reports; he subsequently lodged an application in this Court challenging the validity of that judgment; despite the impeding application the respondent proceeded to take steps towards enforcing the judgment and executing the decree and in that respect he had been served with a hearing notice of a Notice to Show Cause; upon being served with the said notice, he made an application to the High Court seeking a stay of execution pending the hearing of his application before this Court but the High Court declined to grant him the stay on grounds that it had no jurisdiction. 3.The applicant avers that through his application for stay at the High Court, he discovered vide the respondent’s replying affidavit, new material facts relating to the delivery of the judgment in issue. The material facts were that the judgment was delivered in the absence of both parties on 8th March 2019, by Murgor, JA. who was not a member of the bench that heard the appeal. The applicant faults the respondent and its advocates for not disclosing the alleged material facts in the subsequent proceedings. He claims that on account of the said undisclosed material facts, this Court’s judgment was a nullity. The applicant asserts that should the stay not be granted, he will suffer a miscarriage of justice through a judgment which, in his view, was a nullity. 4.In reply, the respondent filed a notice of preliminary objection dated 17th December 2025 on grounds that;1.This Honourable Court is functus officio in this matter having rendered its judgment on 8th March 2019 and thus lacks jurisdiction to hear and determine the current Notice of Motion.2.Under Rule 5(2)(b) of the Court of Appeal Rules 2022, this Court does not have jurisdiction to stay execution of its own judgment of 8th March 2019, as sought, since there is no pending appeal capable of anchoring, premising the current Notice of Motion.3.This Court is moved under non-existent provisions of law being Rules 4(2)(b) and 5(3)(b) of the Court of Appeal Rules, 2022, upon which the Notice of Motion herein is premised, thus divesting the Court of jurisdiction to grant the orders sought; and4.In furtherance of the overriding objectives of Article 159(2) of the Constitution, this Court should peremptorily strike out the Notice of Motion with costs to the appellant as it is an abuse of the court process. 5.The respondent further answered the motion through a replying affidavit sworn on 23rd December 2025, by Ritah Mukhongo, its acting Corporation Secretary. She asserts that, the jurisdictional entry point for this Court to stay execution of the impugned judgment is the existence of a valid notice of appeal lodged in this Court pursuant to Rule 77 of the Court’s Rules; in the circumstances of this case, there is no such Notice as this Court already heard and determined the appeal, judgment having been rendered on 8th March 2019. It is averred that the applicant is tactically attempting to delay the recovery of the monies paid to him in excess of Ksh.8,000,000. The respondent takes issue with the fact that the applicant has taken over four (4) years, since delivery of the impugned judgment, and after filing the application for review dated 20th April 2021, to lodge the present application. 6.It is deposed that the respondent’s advocates issued a demand notice dated 13th July 2020, to the advocates of the applicant, asking that the applicant refunds the monies paid to him pursuant to the judgment of the Employment and Labour Relations Court (ELRC) which was subsequently varied by this Court, but the applicant did not oblige. The respondent proceeded to file appropriate proceedings in the ELRC at Nairobi in Cause No. 361(N) of 2009 to enforce recovery of the monies that had become refundable to it and the ELRC rendered a ruling dated 25th February 2022, ordering the applicant to refund the respondent the sum of Ksh.8,061,000 plus interest at court rates. Aggrieved, the applicant filed an application dated 29th August 2023 at the Supreme Court seeking an order for stay of execution of the judgment of this Court. The Supreme Court heard the application and on 8th December 2023, dismissed it with costs for being unmeritorious. 7.The respondent avers that the applicant was undeterred by the Supreme Court decision and filed yet another application dated 18th February 2025 at the ELRC, seeking stay of execution of the judgment of this Court pending hearing and determination of his application for review in this Court. The ELRC delivered a ruling on 27th November 2025, dismissing the application for want of jurisdiction. The applicant is castigated for previously shuttling across the Supreme Court, the ELRC and this Court, seeking the same orders and still mounting the instant application. It is asserted that the Apex Court having considered and determined the application that sought similar orders as the one herein, this Court has no jurisdiction to sit on appeal against that decision. Moreover, the applicant has not met the conditions for grant of stay of execution as there is no arguable appeal which will be rendered nugatory if the stay is not granted. 8.During the hearing, learned counsel Mr. Oyatsi appeared for the applicant, while Mr. Edmond Wesonga appeared for the respondent. 9.At the outset we inquired from Mr. Oyatsi whether he was certain that we had jurisdiction to hear the matter. Counsel asserted that we did, submitting that the foundation of the instant application is a judgment which, in his view, was not delivered according to the Court’s Rules. We pointed out to Mr. Oyatsi that our power to issue a stay order emanates from Rule 5(2)(b), a rule which assumes that there is an existing appeal or intended appealto this Court. We inquired from him where this Court’s jurisdiction originated from to entertain the present application, when the appeal had already been concluded. In reply, counsel argued that should the Court upon considering the pending application for review find that the impugned Judgment is a nullity, then the appeal would still be pending before Court for judgment. 10.Mr. Oyatsi sought to rely on his filed written submissions in which he reiterates that pursuant to Rule 32, there is no valid judgment that was delivered by the Court. Counsel cites the Supreme Court decision in Petition No. 21 of 2015 GEOFFREY M. ASANYO & 3 OTHERS Vs. ATTORNEY GENERAL for the argument that for a judgment of the Court to be valid, it is mandatory for it to be dated, signed and delivered in open court. Further, reference is made to Civil Appeal No. 59 of 1993 OMEGA ENTERPRISES (K) LTD Vs. KENYA TOURIST DEVELOPMENT CORPORATION & 2 OTHERS for the principle that, if an act is void, then it is in law a nullity and every proceeding which is founded on it is also bad and incurably bad, and so is the judgment of this Court. 11.Counsel filed further submissions dated 22nd January 2026, in reply to the respondent’s preliminary objection. On the question of jurisdiction, reliance is placed on this Court’s decision in BENJOH AMALGAMATED LIMITED & ANOTHER Vs. KENYA COMMERCIAL BANK LIMITED, Civil Application No. Sup.16 of 2012, where the Court observed that it had the residual jurisdiction to review its decision from which there is no appeal, in order to correct errors of law. In further response to the preliminary objection, it is argued that the present motion is anchored upon the application for review pending before this Court, with counsel asserting that if the application succeeds, then there will be no judgment and the appeal will still be pending before the Court. 12.In opposition to the application, Mr. Wesonga orally highlighted submissions filed on behalf of the respondent. He reiterated that the application was premised on non-existent law and, therefore, the jurisdiction of this Court had been improperly invoked. Citing the Supreme Court decision in MICHAEL MUNGAI Vs. HOUSING FINANCE Co. (K) LTD & 5 OTHERS [2017], counsel submitted that there is no cognizable cause in a non-existent law. He urged that where the Court had been moved under a non-existent law, as in the present case, it has no jurisdiction to grant the orders sought. Moreover, such a defect cannot be cured by invoking Article 159 of the Constitution. In support of that assertion, reliance was placed upon the Supreme Court decisions of DANIEL KIMANI NJIHIA Vs. FRANCIS MWANGI KIMANI & ANOTHER [2015] eKLR and HAMDIA YAROI SHEK NURI Vs. FAITH TUMAINI KOMBE & 2 OTHERS [2019] eKLR. On the strength of the holding in JAMAL SALIM Vs. YUSUF ABDULAHI ABDI & ANOTHER [2018] eKLR, counsel urged that it is unconventional for the applicant to seek stay of execution of the judgment of this Court, in this Court, and in the absence of a valid notice of appeal. 13.Mr. Wesonga submitted that this Court was functus officio, having delivered its judgment on 8th March 2019, which was taken to the ELRC for execution. To buttress that argument, he cited this Court’s decision in TELKOM KENYA LIMITED Vs. JOHN OCHANDA (suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR. Concerning the merits of the application, counsel contended that there was no arguable appeal pending before this Court, judgment having been delivered. Moreover, given that the appeal was already determined, its nugatoriness does not arise. It was thus urged that the applicant had failed to satisfy the twin principles for grant of an order of stay of execution. Counsel accused the applicant of abusing the court process, having filed an application in the Supreme Court seeking similar orders, which application was dismissed with costs, and thereafter going back to the ELRC where he yet again filed another application seeking similar orders, which application was struck out. Mr. Wesonga castigated the applicant for employing delay tactics against the respondent in the recovery of money paid to him by the respondent pursuant to the judgment of the ELRC but which this Court reversed on appeal. 14.In a rejoinder to those submissions, Mr. Oyatsi contended that the Supreme Court declined to hear the application made before it because it lacked jurisdiction. According to him, that was confirmation that the only forum where they could get justice is this Court. He argued that the respondent was estopped by its conduct and by law from claiming that this Court delivered a valid judgment. He submitted that such preclusive conduct included, the fact that the respondent is the party that picked up the judgment from the website of the Kenya Law Reports in September 2019 and notified him of the same. The said judgment was delivered on 8th March 2019 by Murgor, JA. who was not a member of the bench that heard the appeal, and, she delivered it in open court in the absence of the parties. Further, notice of delivery of judgment had been issued on 4th March 2019 notifying parties that judgment was to be delivered on 7th June 2019, and requiring parties to be present on the said date. Regarding jurisdiction, counsel submitted that once the issue of illegality is brought to the attention of the court, then the court must investigate it. 15.We sought to know from Mr. Oyatsi what error of law or injustice had been occasioned to the applicant in the impugned judgment, which he sought to overturn in the application for review. In response, counsel charged that the injustice was the fact that the judgment of the ELRC by which the applicant was awarded a certain sum of money in damages was reversed by this Court. Concerning his founding the instant application on non-existent provisions of the law, counsel conceded the point but claimed that the cited provisions were a typographical error. 16.We have given due consideration to the application, the affidavit in support thereof, the respondent’s replying affidavit, the contending submissions and the law. 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. To merit an order of stay or an injunction, an applicant must satisfy the Court that; first, he has an arguable appeal, which means one that raises a bona fide point worthy of consideration, though it need not necessarily succeed and; second, that if the stay or injunction is not granted the appeal, if successful, would be rendered nugatory, which is another way of saying useless or of no effect, due to harm having been suffered in the intervening period. See, Stanley Kangethe Kinyanjui Vs. Tony Ketter & 5 Others [2013] eKLR and Kieni Plains Co. Ltd & 2 Others Vs. Ecobank Kenya Ltd [2018] eKLR. 17.Before we address the merits of the application, we shall first consider the preliminary objection, which in our view, if successful, determines the entire application. We take that approach in view of this Court’s holding in the classicus case of Owners of The Motor Vessel “Lillian S” Vs. Caltex Oil (kenya) Ltd (1989) KLR 1, that a court seized of a matter in which the question of jurisdiction is raised is obliged to decide the issue right away on the material before it. 18.The respondent’s preliminary objection is premised on four (4) grounds, the primary one being whether this Court has jurisdiction to determine the instant application. The respondent contends that this Court is functus officio, having already rendered its judgment on 8th March 2019. Moreover, there is no pending appeal or notice of appeal capable of anchoring the motion herein. In answer, the applicant asserts that the Court’s judgment was not compliant with Rule 32 now Rule 34 of this Court’s Rules hence it was not valid. He contends that while parties were notified on 4th March 2019, that judgment would be delivered on 7th June 2019, the said judgment was delivered on 8th March 2019, without parties being informed and in their absence. The applicant further contests the fact that the Judge who delivered the judgment was not part of the bench that heard the appeal. In view of those grievances, he lodged an application for review of the impugned judgment, which application he claims is the foundation of the instant application. 19.It is beyond doubt that an application for stay of execution, such as the one before us, is predicated on Rule 5(2)(b) of the Rules of this Court. It is bewildering to us how the applicant premised his application on non-existent rules. Counsel having conceded the omission however, while alleging that it was a typographical error, we are minded to overlook the error and say no more. Rule 5(2)(b) expressly provides as follows;“Subject to subrule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—…in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.” 20.Further, this Court in Stanley Kangethe Kinyanjui Vs. Tony Ketter & 5 Others (supra) enumerated the principles upon which the Court exercises jurisdiction pursuant to Rule 5(2)(b) as follows;i)In dealing with Rule 5(2)(b) the court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial judge's discretion to this court. See Ruben & 9 Others v Nderitu & Another (1989) KLR 459.ii.The discretion of this court under Rule 5(2)(b) to grant a stay or injunction is wide and unfettered provided it is just to do so.iii.The court becomes seized of the matter only after the notice of appeal has been filed under Rule 75. Halai & Another v Thornton & Turpin (1963) Ltd. (1990) KLR 365.iv.In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001.v.An applicant must satisfy the court on both of the twin principles.vi.On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.vii.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.viii.In considering an application brought under Rule 5(2)(b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).ix.The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.x.Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.xi.Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.” 21.From the foregoing provisions of the law and jurisprudence, it is trite that the Court only acquires jurisdiction to hear and determine an application under Rule 5(2)(b) if a notice of appeal has been filed. That has been the law restated in many decisions. In Githunguri Vs. Jimba Credit Corporation Ltd (No 2) [1988] KECA 141 (KLR), the Court rendered itself as follows;"We think this Court’s jurisdiction under rule 5(2) to grant either a stay of execution, an injunction or stay of any further proceedings, arises if a notice of appeal has been lodged against the decision or ruling appealed from in accordance with rule 74. And we are then clothed with jurisdiction to grant any of such orders “on such terms as to the Court may think just”. That rule confers an independent original discretion on us and we have to apply our own minds de novo on the suitability or otherwise of the relief sought.” 22.The Court was of similar sentiments in Halai & Another Vs. Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR) where it observed thus;"This court becomes seized of the matter only after the Notice of Appeal has been filed under rule 74. In other words where no appeal is filed this court has no jurisdiction to entertain an application for stay of execution even on assurance of an intending appellant that an appeal will be filed.” 23.In this matter, there is not only no notice of appeal on record to anchor the application herein, but also the Court already dispensed with the appeal which was lodged being Civil Appeal No. 47 of 2012. During the hearing we tried to guide counsel for the applicant by pointing out that there was no jurisdictional peg whence we could draw authority to determine the application but he relentlessly raised the unconventional argument that, the motion herein is anchored on and sustained by the pending application for review. We are not persuaded by such an esoteric view. 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. 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. Once the court has its decision on such appeal, it cannot in reason grant relief as is sought herein. Since there is a pending application seeking to review the judgment of this Court, we have deliberately resisted the temptation to comment on the merits of the applicant’s complaints as to the alleged invalidity of the said judgment. 24.Given our finding that this application does not lie, the same is incompetent. We accordingly strike it out with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.D. K. MUSINGA, (PRESIDENT).....................................JUDGE OF APPEALP. O. KIAGE.....................................JUDGE OF APPEALA. O. MUCHELULE.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar