[2021] KECA 557 (KLR)
The Court of Appeal held that its jurisdiction to grant a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules is dependent on the existence of a properly filed Notice of Appeal in compliance with Rule 75. In this case, the applicants had not filed a Notice of Appeal at the appropriate registry, nor was...
Source-derived case information.
- Citation
- [2021] KECA 557 (KLR)
- Parties
- Applicant: Leah Wairimu Waweru; Applicant: Martha Nyambura Kangthe; Applicant: Milka Wangari Kamau; Applicant: Joshua Njuguna Kamau; Applicant: David Ngugi Kamau; Applicant: Albert Gicheru Kamau; Applicant: Simon Gicheru Kamau; Applicant: Ruth Mumbi Kamau; Respondent: Waithera Mohoyo; Respondent: Ruffas Mwangi Kamau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 27 of 2020
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- Application struck out as incompetent.
- Judges
- J Karanja, GK Oenga, A Mohammed
- Legal Topics
- Stay of Execution, Succession Proceedings, Notice of Appeal Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wairimu Waweru
Applicant
Martha Nyambura Kangthe
Applicant
Milka Wangari Kamau
Applicant
Joshua Njuguna Kamau
Applicant
David Ngugi Kamau
Applicant
Albert Gicheru Kamau
Applicant
Simon Gicheru Kamau
Applicant
Ruth Mumbi Kamau
Applicant
Waithera Mohoyo
Respondent
Ruffas Mwangi Kamau
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to grant a stay of execution where no Notice of Appeal has been properly filed.
- 2 Whether the application for stay of execution is competent in the absence of a Notice of Appeal under Rule 75 of the Court of Appeal Rules.
Ratio Decidendi
The Court of Appeal held that its jurisdiction to grant a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules is dependent on the existence of a properly filed Notice of Appeal in compliance with Rule 75. In this case, the applicants had not filed a Notice of Appeal at the appropriate registry, nor was there any evidence of such filing. The mere attachment of an unstamped and unsigned Notice of Appeal to the supporting affidavit did not satisfy the requirements of Rule 75. Consequently, there was no competent appeal before the Court upon which the application for stay could be anchored. The application was therefore incompetent and was struck out.
Court Disposition
Application struck out as incompetent.
Orders
- The application is struck out for want of jurisdiction due to absence of a properly filed Notice of Appeal.
- No order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: KARANJA, KIAGE & J. MOHAMMED, JJ.A)
CIVIL APPLICATION NO. NYR. 27 OF 2020
BETWEEN
LEAH WAIRIMU WAWERU ..............................1STAPPLICANT
MARTHA NYAMBURA KANGTHE.................2NDAPPLICANT
MILKA WANGARI KAMAU .............................3RDAPPLICANT
JOSHUA NJUGUNA KAMAU............................4THAPPLICANT
DAVID NGUGI KAMAU......................................5THAPPLICANT
ALBERT GICHERU KAMAU.............................6THAPPLICANT
SIMON GICHERU KAMAU...............................7THAPPLICANT
RUTH MUMBI KAMAU.....................................8THAPPLICANT
AND
WAITHERA MOHOYO ...................................1STRESPONDENT
RUFFAS MWANGI KAMAU..........................2NDRESPONDENT
(An application seeking stay of execution of the ruling/order of the High Court of Kenya at Nakuru (Matheka, J.) dated 2ndSeptember, 2020in H. C. Succession Cause No. 76 of 2015)
*******************
RULING OF THE COURT
All eight applicants have through the firm of Gichuki Kenga, filed this application seeking an order of stay of execution of the ruling/order of Justice Mumbua Matheka dated 2nd September, 2020 pending the hearing and determination of the intended appeal.
The intended appeal arises from a Succession matter whereby the applicants filed a Notice of Motion on 26th November, 2016 seeking, in the main, orders that the confirmed grant of letters of administration issued to the two respondents as administrators of the estate of the late Livingstone Kamau Ruffus be revoked and that new administrators be appointed in their place.
Having heard the application, the learned Judge came to the conclusion that the parties have failed to establish grounds for revocation of the Grant as provided for under Section 76 of the Law of Succession Act and consequently dismissed the application.
The applicants were aggrieved by the said order and intend to file an appeal against the same. However, they have not yet filed the appeal and having realized that the statutory time within which they should have filed the appeal had lapsed, they have moved this Court vide Civil Application No. 27 of 2020seeking extension of time. That is therefore, an acknowledgment that there is no Notice of Appeal filed at the appropriate registry in this matter. There is an attachment of a document headed “Notice of Appeal” attached to the supporting affidavit but the document bears no Court stamp nor is it signed by the deputy registrar of the Court, and clearly the same has neither been filed nor lodged at the registry. An application for extension of time is yet to be heard by a single Judge as required by law.
It is axiomatic and it bears repeating that in respect of applications predicted on Rule 5(2)(b) of this Court’s Rules, this Court draws its jurisdiction from the Notice of Appeal filed in compliance with Rule 75 of the Court of Appeal Rules. See Safaricom Limited –v- Ocean View Beach Hotel Limited & 2 others,Civil Application No. 327 of 2009.
Rule 5(2)(b)provides as hereunder:-
“Subject to sub rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may-
i. In any civil proceedings, where a Notice of Appeal has been lodged in accordance with Rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the court may think just.”(Emphasis ours)
Rule 75on the other hand requires a notice of appeal to be filed within 14 days of the date of the decision against which it is desired to appeal. Clearly therefore, there being no Notice of appeal filed pursuant to Rule 75, there is no competent appeal before us on which this application can be premised. In the circumstances, we find the application incompetent and strike it out accordingly with no order as to costs this being a family matter.
DATED AND DELIVERED AT NAIROBI THIS 21STDAY OF MAY, 2021
W. KARANJA
......................................
JUDGE OF APPEAL
P. O. KIAGE
.....................................
JUDGE OF APPEAL
J. MOHAMMED
......................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR