Board of Governors Matili Technical Training Institute & 2 others v Ramogi Construction Company Limited (Civil Application E187 of 2024) [2025] KECA 2211 (KLR) (28 November 2025) (Ruling)

Board of Governors Matili Technical Training Institute & 2 others v Ramogi Construction Company Limited (Civil Application E187 of 2024) [2025] KECA 2211 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2211 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E187 of 2024 HA Omondi, JA November 28, 2025 Between The Board of Governors Matili Technical Training Institute 1st Applicant The Permanent Secretary Ministry of Higher Education 2nd Applicant The Attorney General 3rd Applicant and Ramogi Construction Company Limited Respondent (Being an application for stay of execution from the Ruling of the High Court of Kenya at Bungoma (D. Kemei, J) dated 29th November, 2024 in HCCA No. 1 of 2023) Ruling 1.This is a notice of motion made under Articles 159 and 164(3) of the [Constitution](/akn/ke/act/2010/constitution), section 1A,1B and 63(e) of the [Civil Procedure Act](/akn/ke/act/1924/3), Order 51 Rule 1, Order 22 rule 2, 25 and Order 29 of the Civil Procedure Rules, sections 43,53,86,87 and 88 of the [Basic Education Act](/akn/ke/act/2013/14) and section 21(1)(2)(3)(4) of the [Government Proceedings Act](/akn/ke/act/1956/47) “and all the enabling provisions of the law” seeking orders of this Court to temporarily restrain and stay the respondent from executing and enforcing the decree and Judgment delivered on 15th January, 2024 by the High Court pending the hearing and determination of the intended appeal against the Ruling delivered on 29th November, 2024. The application is supported by the grounds on the face of the motion and the annexed affidavit of Judith Senda, the Secretary of the Board of the applicant. 2.The applicant states that the respondent obtained a Judgment against it for the sum of Kshs.16,438,442 on 15th January, 2024. The applicant complains that the respondent commenced execution process by attaching its properties contrary to section 21 of the [Government Proceedings Act](/akn/ke/act/1956/47). The applicant’s application seeking to stay the execution was dismissed by the High Court hence the present application. The applicant contends that its intended appeal is meritorious as it raises weighty and triable issues with high chances of success. 3.The applicant asserts that it risks closure and its operations paralyzed if the respondent will be allowed to continue with the intended execution. The applicant states that it caters for over 10,000 students whose education will be disrupted and their right to education compromised if the execution proceeds. The applicant urged the Court to grant the orders of stay of execution craved for pending the hearing and determination of the intended appeal. 4.The application is opposed. The respondent filed grounds in opposition to the application. The respondent termed the application as bad in law, non-starter and misconceived and unsustainable. The respondent contends that the application has been brought under the wrong provisions of the law; and was therefore procedurally and substantially defective. The respondent insisted that the application did not disclose any reasonable grounds or sufficient cause to warrant the orders being sought to be granted. The respondent maintained that the prayers sought in the application had been overtaken by events, and was an abuse of the Court process meant to delay the respondent from enjoying the fruits of its Judgment. The respondent pleaded with the Court, in the interest of justice, to dismiss the application with costs. 5.During the hearing of the application, Mr. Mulama, learned counsel appeared for the respondent. There was no appearance for the applicant despite being served by the Court with the hearing notice. However, the applicant filed written submission in support of its application. In the said submission, the applicant (curiously) invoked the principles to be considered by this Court in determining applications brought under Rule 5(2) of the [Court of Appeal Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31), yet it was clear from its application that no rule of procedure of this Court was cited. The applicant urged the Court to grant the orders prayed for in the application so as not to render the intended appeal, (which in their view was arguable) from being rendered nugatory. 6.Mr. Mulama, submitted that no appeal had been filed by the applicant against the order of the High Court that is sought to be stayed. In the circumstances, he pointed out that there was no arguable appeal nor could the intended appeal be rendered nugatory. He stated that the respondent had, pursuant to Judgment of the trial court, already executed and sold the attached properties to settle the decretal sum. The application had therefore been overtaken by events. Counsel for the respondent urged the Court to dismiss the application with costs. 7.This Court has carefully considered the rival submission made by counsel for the parties to this application. The Judgment that resulted in the execution process that is sought to be stayed was rendered by the High Court on 15th January, 2024. The applicant is not appealing against the said Judgement. Indeed, no notice of appeal has been filed by the applicant in respect to the said Judgment. The notice of appeal that has been lodged is in respect of the High Court’s Ruling delivered on 29th November, 2024 which declined to grant the applicant’s application which sought to stay the execution and set aside the execution process. It is therefore evident that there is no notice of appeal lodged in respect of the Judgment that was delivered by the High Court on 15th January, 2024 in favour of the respondent. Rule 5(2)(b) of this [Court’s Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31) provides thus:“5(2).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-(a)...(b)In any Civil Proceedings where a notice of appeal has been lodged in accordance with Rule 77, order stay of execution, an injunction or stay of any further proceedings on such terms as the Court may think just” (underlining ours). 8.It is therefore clear from the foregoing that, in the absence of a duly filed notice of appeal, this Court lacks jurisdiction to entertain this application. It is time for us to down our tools as we hereby do. 9.The application lacks merit and is hereby dismissed with costs to the respondent. **DATED AND DELIVERED AT KISUMU THIS 28 TH DAY OF NOVEMBER, 2025.****H. A. OMONDI****...........................****JUDGE OF APPEAL****L. KIMARU****...........................****JUDGE OF APPEAL****L. A. ACHODE****............................****JUDGE OF APPEAL** I certify that this is a true copy of the originalSigned**DEPUTY REGISTRAR**