https://new.kenyalaw.org/akn/ke/judgment/keca/2026/981

Ali v Njoroge (Suing as Administrators of the Estate of Njoroge Ngugi) & another (Civil Application E092 of 2026) [2026] KECA 981 (KLR) (5 May 2026) (Ruling) Neutral citation: [2026] KECA 981 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E092 of 2026 W Karanja, A Ali-Aroni & LM Njuguna, JJA May 5, 2026 Between Noor Haji Ali Applicant and John Kiarie Njoroge (Suing as Administrators of the Estate of Njoroge Ngugi) 1st Respondent Lucy Wanjiru Njoroge (Suing as Administrators of the Estate of Njoroge Ngugi) 2nd Respondent (Being an application for stay of execution pending appeal from the Ruling and Order of the Environment and Land Court of Kenya at Nairobi (Mbogo C.G., J.) delivered on 19th January 2026 in ELC Case No. E412 of 2022) Ruling 1.When the application dated 11th February 2026 came up for hearing, learned counsel Mr. Rukwaro appeared for the respondent. There was no appearance by counsel for the applicant, although duly served with the hearing notice. 2.However, at the end of the session, counsel appeared and informed the Court that he received the link for the virtual hearing late, after the proceedings had already started and hence his absence when his matter was called out. In counsel’s absence, we noted that he had filed submissions, which we considered, having read them prior to the hearing. 3.On his part, Mr. Rukwaro informed the Court that he became aware of this application after being served with the submissions; as he had not been served with the application itself. He informed the Court that he had filed grounds of opposition earlier that morning, but as we had not received them , we allowed him to address us on points of law. 4.Counsel urged us to dismiss the application as the same does not meet the threshold set for applications predicated on Rule 5(2)(b) of the Court of Appeal Rules. He said that the application was fatally defective as it also sought to stay a judgment delivered in 2024 which had not been appealed against. He also informed the Court that the ruling, the subject of this application, is still live before the trial court as the applicant has filed an application for review on which the court has already issued directions. He wound up by stating that the application, and counsel’s conduct in the matter, amount to an abuse of the court process and urged us to dismiss the application. 5.We gave ex-tempore orders dismissing the application reserving the reasons for the dismissal to be given later. These are the reasons for the said dismissal. 6.Firstly, we noted that there is no notice of appeal in respect of the impugned ruling annexed to the supporting affidavit and the Court could not tell whether indeed there is a notice of appeal to that effect.As has been stated, time without number, the jurisdiction of this Court to entertain applications under Rule 5(2)(b) of the Court of Appeal Rules is drawn from a notice of appeal filed in accordance with Rule 77 of the Court of Appeal Rules. In the absence of such a notice of appeal, an application like the one before us becomes dead on arrival. See this Court’s decision in Safaricom Limited -vs- Ocean View Beach Hotel Ltd [2010]. 7.As if that was not enough, the application is also omnibus and seeks stay of the judgment itself, delivered in 2024, and for which no appeal has been filed. It is clear to us that counsel for the applicant is either oblivious of the existence of this Court’s Rules and relevant decisions of this Court that apply in regard to the applications like the one before us, or he does not take this Court seriously. We say no more. 8.The sum total of the above is that the notice of motion is irredeemably defective, it is bad in law and we dismiss it with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MAY 2026W. KARANJA.................................JUDGE OF APPEALALI-ARONI.................................JUDGE OF APPEALL. NJUGUNA.................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.