Bernard Herman Karanja v Jane Wambui & Robert Kagunya Kamau (Suing as the Administrators of the Estate of Emma Wangui Kamau) & another
The bottom line
#The Court of Appeal dismissed a repeat application for stay of execution, warning that re-filing already-rejected requests wastes the court's time and costs money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a single Judge of the Court of Appeal has jurisdiction to grant an order of stay of execution as sought
- 2.Whether the application, seeking essentially the same orders as a previously dismissed application, is an abuse of the Court process
Key legal issues
#Jurisdiction of a single Judge to grant stay of execution
A single Judge of the Court of Appeal lacks jurisdiction to issue the order of stay of execution sought.
The applicant sought stay of execution of the judgment and decree of Gacheru, J delivered on October 8, 2021. The Court, sitting as a single Judge, held that it does not have jurisdiction to issue such an order as sought, and that the application was a gross abuse of the Court process.
Abuse of Court process by re-litigating dismissed applications
An application seeking essentially the same orders as one already dismissed by the Court is a gross abuse of process and must be dismissed.
The applicant sought to have the present application heard simultaneously with Civil Application No. E423 of 2021, which Mbogholi JA dismissed on 1st April 2022. The Court noted the applicant was seeking essentially the same orders as in that dismissed application, rendering the present motion an abuse of process, without merit, and liable to dismissal with costs.
Legal principles established
#- A single Judge of the Court of Appeal does not have jurisdiction to issue orders of stay of execution as sought under the circumstances of this application.
- Filing an application seeking essentially the same orders as a previously dismissed application is a gross abuse of the Court process.
Court orders
#- 1.The applicant's motion dated 1st February 2022 is dismissed in its entirety with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Thika
- ELC No. 570 of 2017
- Jurisdiction invoked
- Articles 40(1), 159(d), 164(3) and 259 of the Constitution; Sections 3, 3A, 3B of the Appellate Jurisdiction Act; Rules 5(2)(b) and 103 of the Court of Appeal Rules
Relief refused
#Leave to file an appeal against the judgment of Gacheru, J dated 8th October 2021
The entire motion was dismissed as without merit and an abuse of process
Stay of execution of the judgment and decree issued by Gacheru, J on October 8, 2021
A single Judge of the Court of Appeal lacks jurisdiction to issue orders of stay of execution as sought
Costs
Costs of the application to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court, sitting as a single Judge does not have jurisdiction to issue orders of stay of execution as is being sought.
The applicant’s application is a gross abuse of the Court process.
Accordingly, the applicant’s motion dated 1st February 2022, is without merit and the same is hereby dismissed in its entirety with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Herman Karanja v Jane Wambui & Robert Kagunya Kamau (Suing as the Administrators of the Estate of Emma Wangui Kamau) & another", Case Analysis (2022). Civil Application E026 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1110/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.