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Court of AppealStruck OutNot stated (Motion dated 23rd May, 2024)

Oduori & 5 others v Mika & another (Civil Application E072 of 2024) [2024] KECA 872 (KLR)

Court of Appeal of Kenya
19 July 2024
HOHannah Okwengu
772 words in judgment
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The bottom line

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The Court of Appeal struck out a combined application for leave to appeal, stay of execution and extension of time because omnibus motions mixing full-bench and single-Judge matters are incompetent.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Kisumu delivered by Okwengu JA on 19th July 2024 in an application dated 23rd May 2024 by Charles Oloo Oduori. The motion arose from a judgment of Omollo J of the Environment and Land Court at Busia (ELC Case No 196 of 2014) in which John James Barasa obtained vacant possession of land parcel LR No Samia/Buburi/82, an order for eviction in default, general damages of Kshs 300,000 and costs. The applicant sought leave to file an appeal and an application for stay of execution out of time, extension of time, and timelines for filing. He attributed the delay to his advocate's indisposition and the Covid-19 pandemic lockdowns. Neither party filed submissions or a reply. The single Judge held that the motion was an omnibus application improperly placed before a single Judge: the prayer for leave to appeal together with stay of execution falls to be heard by a full bench under Rule 55(2)(a), while only the extension-of-time prayer falls within a single Judge's jurisdiction under Rule 55(1). The Court further held it has no jurisdiction to hear a stay application before leave to appeal is determined, since that leave gives the Court jurisdiction under Rule 5(2)(b) once a notice of appeal is filed. The entire application was struck out as incompetent. No costs order was made. No authorities were cited in the ruling.

Key legal issues

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Competence of an omnibus application before a single Judge combining leave to appeal, stay of execution and extension of time

Holding

The motion was incompetent. The leave and stay prayer required a full bench under Rule 55(2)(a); only the extension-of-time prayer fell within the single Judge's jurisdiction under Rule 55(1). An omnibus motion could not be split and was struck out.

Reasoning

Rule 55(2)(a) reserves leave-to-appeal-plus-stay applications to the full bench. Rule 55(1) confers extension-of-time jurisdiction on a single Judge. Because the motion was presented as one omnibus application, it could not properly be placed before either forum. Further, stay of execution under Rule 5(2)(b) presupposes that leave to appeal has first been determined, so the Court lacked jurisdiction to entertain the stay before the leave. The whole motion was accordingly struck out as incompetent.

p. 2

Legal principles established

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  • An application under Rule 55(2)(a) of the Court of Appeal Rules for leave to appeal together with stay of execution must be heard by a full bench, not a single Judge.
  • The Court has no jurisdiction to hear an application for stay of execution before the issue of leave to appeal is heard and determined; the leave gives the Court jurisdiction to hear the stay application.
  • An omnibus motion combining prayers that fall to be heard by a full bench with prayers within a single Judge's jurisdiction cannot be entertained by either and is incompetent.

Court orders

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  1. 1.The application dated 23rd May, 2024 is struck out as incompetent
On appeal from
Environment and Land Court (ELC)
Busia Environment and Land Court Case No 196 of 2014
Jurisdiction invoked
Article 59 of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 31, 39(b), 41, 42, 43 and 53 of the Court of Appeal Rules

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, "Oduori & 5 others v Mika & another (Civil Application E072 of 2024) [2024] KECA 872 (KLR)", Case Analysis (2024). Not stated (Motion dated 23rd May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/872/eng@2024-07-19

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