Kihumba v Kimotho & another (Civil Application E356 & E357 of 2023 (Consolidated)) [2024] KECA 345 (KLR)
The bottom line
#The Court of Appeal gave an applicant more time to file an appeal but refused to hear the stay request because no notice of appeal had been filed.
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 two applications with different case numbers but identical prayers should be consolidated
- 2.Whether a single judge may entertain an application for stay of execution under Rule 5(2)(b) where no notice of appeal is on record
- 3.Whether time should be extended under Rule 4 for lodging and serving the notice of appeal, applying the Leo Sila Mutiso factors
Key legal issues
#Whether to extend time under Rule 4 to lodge and serve a notice of appeal where the applicant changed advocates and obtained a second legal opinion after the statutory 14-day period lapsed
Extension granted: a 21-day delay explained by the change of advocates and a second opinion was plausible and not disproportionate, and the application was unopposed.
The judge applied the Leo Sila Mutiso parameters. The delay was 21 days beyond the statutory 14-day period. The reason offered - that former advocates advised against an appeal and the applicant sought alternative advice - was found plausible. The delay was held not disproportionate, and the absence of opposition made the exercise of discretion in the applicant's favour easier. The extension was conditional on lodging the notice of appeal within seven days.
Whether a single judge could determine the stay of execution prayer
No: the stay prayer was incompetent before a single judge because no notice of appeal was on record and Rule 55(2) reserves stay applications for the full Court.
The court distinguished between the extension-of-time prayer (properly before a single judge under Rule 4) and the stay prayer. Under Rule 5(2)(b), stay requires a filed notice of appeal, which was absent. Further, under Rule 55(2), stay applications fall to be heard by the full Court, not a single judge. The judge therefore declined to deal with the stay prayer and proceeded only with the extension prayer.
Legal principles established
#- An application for stay of execution under Rule 5(2)(b) requires a properly filed notice of appeal on record, and such an application may be heard only by the full Court, not a single judge.
- In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.The two applications (E356 of 2023 and E357 of 2023) consolidated and considered jointly as one application
- 2.Prayer for stay of execution not dealt with, being incompetent before a single judge and premature absent a filed notice of appeal
- 3.Extension of time granted: the applicant to lodge the notice of appeal within seven (7) days of the date of the order
- 4.Costs of the motion to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010 (with Article 159(2)(d) of the Constitution invoked by the applicant)
- Consolidated with
- E357 of 2023
Relief refused
#Stay of execution of the judgment and decree of Lady Justice A. Omollo delivered on 22nd June 2023
No properly filed notice of appeal on record, and an application for stay of execution can only be heard by the full Court, not a single judge
Costs
Costs of this motion shall be in the intended appeal.
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 result the motion dated 27th July 2023, is allowed. I accordingly extend time to the end that the applicant shall lodge the notice of appeal within seven (7) days of the date of this order.
Costs of this motion shall be in the intended appeal.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
pursuant to Rule 5(2)(b) of this Court's Rules, one can only make an application for stay of execution when there's a properly filed notice of appeal on record which is not the case herein
in accordance with Rule 55(2) of the Rules, an application for stay of execution can only be heard by the Court and not a single judge
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Co-operative Bank of Kenya Limited v Owino alias Victor Brian Owino & 2 others (Civil Application E154 of 2024) [2025] KECA 344 (KLR)[2025] KECA 344 (KLR)21 Feb 2025applied
- Nguyo & another v Gitari & another (Civil Appeal (Application) E028 of 2024) [2024] KECA 798 (KLR)[2024] KECA 798 (KLR)12 Jul 2024followed
- Kandie v Mogeni & another (Civil Appeal (Application) E060 of 2023) [2024] KECA 821 (KLR)[2024] KECA 821 (KLR)12 Jul 2024followed
Cite this brief
#Cite this brief
Caselaw, "Kihumba v Kimotho & another (Civil Application E356 & E357 of 2023 (Consolidated)) [2024] KECA 345 (KLR)", Case Analysis (2024). E356 of 2023 and E357 of 2023 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/345/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.