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Court of AppealOtherCivil Application 100 of 2021· [2022] KECA 941 (KLR)

Mukanda v Mutswenje

Court of Appeal
22 July 2022
PKP. O. Kiage
361 words in judgment
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The bottom line

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The Court of Appeal confirmed that only a full bench of three judges can hear applications for stay of execution under Rule 5(2)(b) — a single judge cannot.

What this practically means

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Executive summary

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This is a short single-judge order of the Court of Appeal delivered by Kiage, JA on 22 July 2022. The applicant, Francis Makuba Mukanda, moved by Notice of Motion dated 6 October 2021 seeking stay of execution of a certificate of costs dated 10 September 2021, pending the hearing and determination of an application dated 22 June 2021 seeking enlargement of time within which to lodge and serve a Record of Appeal out of time in Civil Application No. 26 of 2019. The decree originated from the Environment and Land Court at Kakamega (Matheka, J.) in ELC Case No. 507 of 2014, judgment having been entered on 28 February 2019. The applicant framed the motion as a Rule 5(2)(b) application, though it also appeared to seek an extension of time under Rule 4. Kiage, JA held that, on a reading of the supporting affidavit, the application was a Rule 5(2)(b) application, which a single judge has no jurisdiction to hear; such applications can only be canvassed before a full bench. He therefore directed that the application be properly listed before the full Bench. No costs order was made and the merits of the stay were not considered. The order establishes the procedural point that Rule 5(2)(b) applications are reserved to a full bench.

Key legal issues

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01

Jurisdiction of a single judge over Rule 5(2)(b) applications

Holding

A single judge cannot hear a Rule 5(2)(b) application; it must be placed before a full bench.

Reasoning

The applicant sought stay of execution of a certificate of costs pending determination of an extension-of-time application. Although framed as a Rule 5(2)(b) application, the single judge found the relief sought was within the exclusive province of a full bench, and directed that the application be listed before the full Bench rather than striking it out.

p. 1

Legal principles established

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  • A single judge of the Court of Appeal has no jurisdiction to hear and determine a Rule 5(2)(b) application; such applications can only be canvassed before a full bench.

Court orders

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  1. 1.That this application be properly listed before the full Bench

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 4
On appeal from
Environment and Land Court
ELC Case No. 507 of 2014
Jurisdiction invoked
Rule 5(2)(b) and Rule 4 of the Court of Appeal Rules (as invoked by the applicant); single judge lacks jurisdiction over Rule 5(2)(b) applications

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, "Mukanda v Mutswenje", Case Analysis (2022). Civil Application 100 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/941/eng@2022-07-22

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