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Court of AppealPartially AllowedCivil Application No. NAI. 115 of 2016 (UR 92/2016)

Okiya Omtatah Okoiti & another v Afrison Export Import Limited & 8 others [2016] KECA 265 (KLR)

Court of Appeal
30 September 2016
3,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed citizen activists can sue in the public interest, but refused to halt a Kshs 2.4 billion payout because no notice of appeal had been filed.

What this practically means

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Executive summary

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This is a ruling of a three-Judge bench of the Court of Appeal at Nairobi on an omnibus Notice of Motion dated 6th May 2016 by Okiya Omtatah Okoiti and Nyakina Wycliffe Gisebe, acting in person and in the public interest. They sought permission to file an intended appeal against a High Court judgment (Mabeya, J., 12th February 2013, H.C.C.C. No. 617 of 2012) awarding the respondents Kshs.4,086,683,330, later varied by consent to Kshs.2,400,000,000 as compensation for Government acquisition of land, together with extension of time and stay of execution of the partly executed decree. The applicants alleged a fraudulent scheme to steal public funds. The respondents challenged their locus standi. The Court first held that locus standi is a jurisdictional issue, and applying the Supreme Court's Mumo Matemu decision and Article 258 of the Constitution, found that public interest litigants who act in good faith and seek no personal gain have standing. It declined, however, to consider the prayer for stay of execution, since no notice of appeal had been lodged and rule 5(2)(b) jurisdiction depends on a lodged notice of appeal, following Nguruman Limited v Shompole Group Ranch. It also held that extension of time is for a single Judge at first instance under rule 53. The Court partially allowed the application by permitting the applicants to seek extension of time before a single Judge, with liberty to pursue other prayers if successful, and ordered costs to be in the Notice of Motion. The decision below was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants, who were not parties before the High Court, have locus standi to bring the application and pursue an intended appeal in the public interest
  2. 2.Whether the Court can consider the prayer for stay of execution in the absence of a notice of appeal
  3. 3.Whether the prayer for extension of time can be entertained by a full bench of the Court at first instance

Key legal issues

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01

Locus standi of non-parties acting in the public interest

Holding

The applicants have locus standi; Article 258(1) and 2(c) confers standing on persons acting in the public interest, and the applicants satisfied the good-faith and no-personal-gain parameters.

Reasoning

The Court traced the enlarged scope of standing under the 2010 Constitution through the Supreme Court's Mumo Matemu ruling, which adopted the High Court's parameters in John Wekesa Khaoya. The applicants claim no personal interest, seek no personal gain, and their application is in the public interest; absence of good faith was not demonstrated. Rule 75(1) confirms that any person who desires to appeal may give notice.

p. 6
02

Jurisdiction to grant stay of execution absent a notice of appeal

Holding

The Court cannot consider the prayer for stay of execution because no notice of appeal had been filed; rule 5(2)(b) jurisdiction depends on a lodged notice of appeal.

Reasoning

Relying on the five-Judge bench decision in Nguruman Limited v Shompole Group Ranch, the Court held that an appeal includes an intended appeal manifested by filing a notice of appeal under rule 75(1). Without an appeal or notice of appeal, the Court lacks jurisdiction to grant any orders under rule 5(2)(b). The applicants had not filed a notice of appeal.

p. 6
03

Forum for extension of time application

Holding

Extension of time is a single Judge application and may only come before a full bench on reference from a single Judge's decision.

Reasoning

The Court noted that the omnibus motion combined a single Judge application (extension of time under rule 53) with prayers for the full bench (stay). It declined to consider the merits in detail, leaving them for proper consideration should the applicants succeed before a single Judge.

p. 6

Legal principles established

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  • A person acting in the public interest under Article 258(1) and 2(c) of the Constitution has standing to move the Court to protect the public interest, even where not a party to the proceedings below, provided the suit is brought in good faith, is in the public interest and is not aimed at personal gain.
  • The Court's jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to order a stay of execution, an injunction or a stay of proceedings is exercisable only where a notice of appeal or appeal has been lodged.
  • An application for extension of time to lodge a notice of appeal must be considered at first instance by a single Judge, and may come before a full bench only on reference.

Court orders

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  1. 1.The applicants, who were not parties before the High Court, were granted leave to seek extension of time to file a Notice of Appeal before a single Judge of the Court
  2. 2.If successful before the single Judge, the applicants will be at liberty to seek reliefs in terms of the other prayers of the Notice of Motion
  3. 3.Costs shall be in the Notice of Motion

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
majority
On appeal from
High Court of Kenya
H.C.C.C. No. 617 of 2012
Jurisdiction invoked
Articles 20, 22, 23, 40(b), 50(1), 159, 162(2)(b), 164(3), 165(5)(b), 258 and 259(1) of the Constitution; sections 3(2), 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2), 4, 42, 43(1), 75 and 77 of the Court of Appeal Rules

Relief refused

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Stay of execution of the partly executed decree pending the intended appeal

The Court lacks jurisdiction under rule 5(2)(b) where no notice of appeal has been lodged

p. 6

Extension of time to file and serve a Notice of Appeal, Memorandum and Record of Appeal

The prayer is a single Judge application which must first be considered by a single Judge, with any reference thereafter coming to the full bench

p. 6

Costs

Costs shall be in the Notice of Motion.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Being of that view, the order which commends itself to us for now is to allow the applicants who were not parties before the High Court, to seek extension of time to file a Notice of Appeal before a single Judge of this Court.
p. 6Final orders - leave to seek extension of time before a single Judge
If they succeed, they will be at liberty to seek reliefs in terms of the other prayers of the Notice of Motion. We so order.
p. 6Final orders - liberty to pursue other prayers
we have come to the conclusion that the applicants have locus standi to move the court as they have done.
p. 6Public interest standing under Article 258
In the absence of a notice of appeal, we cannot consider the prayers for stay of execution sought in this application.
p. 6No jurisdiction to grant stay absent notice of appeal
Costs shall be in the Notice of Motion.
p. 6Costs order

Issues in the judgment

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minor

The judgment contains an internal inconsistency in the date of the judgment being varied: the consent of 2nd April 2013 is recorded as varying a judgment made on 12th March, 2013 whereas the judgment was earlier stated to have been delivered on 12th February, 2013.

minor

The 1st respondent is named 'Afrison Export Import Limited' in the cause title but referred to as 'African Export Limited' in the narrative paragraph.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okiya Omtatah Okoiti & another v Afrison Export Import Limited & 8 others [2016] KECA 265 (KLR)", Case Analysis (2016). Civil Application No. NAI. 115 of 2016 (UR 92/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/265/eng@2016-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.