Mwangi & another v Kibowen (Civil Application E189 of 2021) [2023] KECA 1294 (KLR)
The bottom line
#The Court of Appeal in Eldoret struck out the Mwangis' stay application because they never lodged a notice of appeal, leaving the 2020 land ruling intact.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to grant a stay of proceedings/execution under Rule 5(2)(b) in the absence of a lodged notice of appeal
- 2.Whether the Court can entertain an application for extension of time to file an application for stay out of time
Key legal issues
#Whether the Court has jurisdiction under Rule 5(2)(b) to grant stay absent a notice of appeal
The Court has no jurisdiction; a lodged notice of appeal is the cornerstone of the jurisdiction under Rule 5(2)(b), and none was exhibited despite the applicants' averment
Rule 5(2)(b) is anchored on Rule 77, which makes lodging a notice of appeal the cornerstone of the Court's jurisdiction. Although the applicants averred that a notice of appeal was filed, none was exhibited, so the Court could not confirm lodgment within 14 days as prescribed by Rule 77(2). Relying on Safaricom v Ocean View Beach Hotel and Salat, the Court held that without a notice of appeal it has no business meddling in the decision of the High Court.
Whether the full Court may entertain an application for extension of time to file a stay application out of time
It may not; such applications are for a single judge under Rule 55(1), subject to reference to the full Court or review under Rule 57(1)(b)
Extension of time applications are lodged under Rule 4 and are for determination by a single judge, with a proviso allowing a single judge to refer the application to the full Court. A dissatisfied litigant may also apply under Rule 57(1)(b) to vary, discharge or reverse a single judge's decision. Assuming the single judge's jurisdiction directly would deprive applicants of that second channel and cause injustice.
Whether an omnibus, amorphous application is competent
No; the application was described as omnibus and amorphous and was struck out in its entirety
The Court noted from the onset that the application was omnibus and amorphous in nature and content. Prayers 2 and 5 seeking extension of time to file a stay application out of time were amorphous; although the Rules set no timeline for Rule 5(2)(b) applications, commonsense requires they be brought in good time before what is sought to be stayed is overtaken by events.
Legal principles established
#- A notice of appeal lodged under Rule 77 is the cornerstone of the Court of Appeal's jurisdiction; no stay order may issue under Rule 5(2)(b) where no notice of appeal has been lodged
- A Notice of Appeal is a jurisdictional pre-requisite that must be filed regardless of whether the subject matter requires leave to appeal
- Applications for extension of time under Rule 4 are for determination by a single judge under Rule 55(1), and a full Court cannot assume that jurisdiction without a reference by a single judge
Court orders
#- 1.The notice of motion dated 8th February 2023 is struck out in its entirety
- 2.The costs of the application shall be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Eldoret
- Eldoret ELC Case No. 299 of 2012
- Jurisdiction invoked
- Rules 4 and 5(2)(b) of the Court of Appeal Rules, 2022; sections 63 and 95 of the Appellate Jurisdiction Act (as urged by applicants)
Relief refused
#Leave for filing of an application for stay of proceedings out of time / extension of time of whatever nature
Extension of time applications fall to a single judge under Rule 55(1); the full Court cannot assume that jurisdiction absent a reference by a single judge
Stay of execution of the judgment and orders in Eldoret ELC Case No. 299 of 2012
No notice of appeal was exhibited; without a notice of appeal the Court has no jurisdiction under Rule 5(2)(b)
Costs
The costs of the application shall be borne by the applicants.
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.
In the circumstances, we find that without a notice of appeal, we have no jurisdiction to hear the applicants’ application for stay of proceedings. The application is therefore for striking out and we strike it out.
If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2)(b) because as I have already pointed out the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court
Therefore, if this Court assumes the jurisdiction of a single judge, without any reference of the matter to this Court by a single judge, the applicants would sufier an injustice in their quest for justice.
Consequently, the notice of motion dated 8th February 2023 is hereby struck out in its entirety. The costs of the application shall be borne by the applicants.
Issues in the judgment
#The respondent is not named anywhere in the judgment text; the parties section necessarily records the respondent as unnamed, and the case title is reconstructed from the applicants' names
The same Supreme Court authority appears twice in the judgment under slightly different party renderings (Nick Kiptoo Arap Korir Salat v IEBC cited by counsel, and Nicholas Kiptoo Arap Korir Salat v IEBC applied by the Court), so the case is listed as two entries
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & another v Kibowen (Civil Application E189 of 2021) [2023] KECA 1294 (KLR)", Case Analysis (2023). Application dated February 8, 2023 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1294/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.