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Court of AppealStruck OutNot stated in judgment· [2021] KECA 264 (KLR)

Umesh v Mediheal Hospital & Fertility Centre Ltd t/a Mediheal Hospital & Fertility Centre & another (Civil Application E118 of 2021) [2021] KECA 264 (KLR)

Court of Appeal
3 December 2021
645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck out an application that wrongly combined a stay request with an extension of time, ruling they must be filed separately.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Kiage, M'Inoti and Ngugi, JJA) delivered on 3rd December, 2021, striking out a Notice of Motion dated 1st August, 2021 by Nichat Umesh. The applicant sought an interim stay of execution of orders of the Employment and Labour Relations Court, leave to file a notice of appeal out of time, and an order deeming the notice of appeal lodged on 29th July, 2021 as duly filed. The Court found the application defective in multiple respects. First, it lumped together a Rule 5(2)(b) stay application, which must be heard by the full court, with a Rule 4 extension-of-time application, which must in the first instance be heard by a single judge under Rule 53(1). Adopting M'Inoti, JA's holding in Riccardo Fanelli v Frigrieri Graziano [2015] eKLR, the Court held the two are separate and distinct applications that must be filed and prosecuted separately. Second, since the notice of appeal was admittedly out of time and stood incompetent unless validated by an extension of time, there was no appeal before the Court; the extension application had to be resolved first before the Court could be clothed with jurisdiction to consider a stay. The Court accordingly found the application incompetent as omnibus and premature, struck it out with costs, and refused all the prayers sought.

Key legal issues

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01

Whether a single omnibus application may combine Rule 4 and Rule 5(2)(b) prayers

Holding

No; the two applications are separate and distinct, are heard by different fora (single judge vs full bench), and must be filed and prosecuted separately.

Reasoning

The Court found the seven prayers repetitive and defective, noting that a Rule 5(2)(b) application is heard by a full bench while a Rule 4 extension application ought to be heard by a single judge. Adopting M'Inoti, JA's holding in Riccardo Fanelli, it held the procedures are distinct and lumping them together renders the application incompetent.

p. 2
02

Whether a stay of execution under Rule 5(2)(b) can be granted where no valid notice of appeal exists

Holding

No; without an extension of time validating the out-of-time notice of appeal, there is no appeal before the Court, so the Rule 5(2)(b) application is premature.

Reasoning

The applicant admitted the notice of appeal lodged on 29th July, 2021 was out of time and sought validation. Until a single judge extends time, the notice stands incompetent, and logical sequencing demands the extension question be resolved first before the full court can be seized of jurisdiction over the stay.

p. 2

Legal principles established

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  • Applications for extension of time under Rule 4 are heard in the first instance by a single judge, while Rule 5(2)(b) applications must be made to the full court; the two cannot be combined in one omnibus application.
  • A Rule 5(2)(b) stay application requires a notice of appeal in place; where time for filing the notice has not been extended, the Court lacks jurisdiction to entertain the stay until the extension-of-time application is dispensed with.

Court orders

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  1. 1.The application is struck out with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 55

Cases cited (1)

  • Riccardo Fanelli & 2 Others -vs- Frigrieri Graziano
    [2015] eKLR
On appeal from
Employment and Labour Relations Court
Not stated in judgment
Jurisdiction invoked
Court of Appeal Rules, Rules 4 and 5(2)(b) (interlocutory application jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Umesh v Mediheal Hospital & Fertility Centre Ltd t/a Mediheal Hospital & Fertility Centre & another (Civil Application E118 of 2021) [2021] KECA 264 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/264/eng@2021-12-03

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