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Court of AppealStruck OutNotice of Motion dated 17th May, 2023· [2024] KECA 1453 (KLR)
Dr Ferdinand Chirure Nyongesa v Masinde Muliro University of Science & Technology & 2 others
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal struck out an application that mixed two reliefs needing different court formations, but allowed the applicant to refile correctly.
What this practically means
#Executive summary
#This was a ruling delivered by Hannah Okwengu, JA, sitting as a single Judge of the Court of Appeal at Kisumu on 18th October, 2024. The applicant, dissatisfied with a judgment of the Employment and Labour Relations Court delivered on 26th January, 2023 dismissing his petition challenging appointments and promotions at Masinde Muliro University of Science & Technology, moved the Court by a Notice of Motion dated 17th May, 2023 seeking two reliefs: extension of time to file a memorandum of appeal, and stay of execution of the ELRC judgment pending the intended appeal. Although affidavits of service were filed indicating service of the motion itself, no affidavit of service of the hearing notice, as directed on 8th October, 2024, was placed before the Court. Considering the motion on its merits, the single Judge found it to be an omnibus application: extension of time under Rule 55(1) of the Court of Appeal Rules falls to be heard by a single Judge, whereas stay of execution pending appeal under Rule 55(2)(a) must be heard by a full bench. Joining the two reliefs rendered the application defective. The Judge struck out the motion but granted the applicant liberty to file an appropriate, rule-compliant application. No costs order was made. The decision below was not disturbed, and no substantive view on the intended appeal was expressed.
Key legal issues
#01
Whether an omnibus application mixing single-Judge and full-bench relief is properly before a single Judge
Holding
It is not; the application is defective and liable to be struck out.
Reasoning
Rule 55(1) of the Court of Appeal Rules confers on a single Judge the power to hear extension-of-time applications, while Rule 55(2)(a) reserves stay-of-execution pending appeal for the full bench. Joining both reliefs in one motion before a single Judge offends the rules; the proper course is to strike it out with liberty to file separate, rule-compliant applications.
p. 2
Legal principles established
#- An application combining extension of time (a single Judge function under Rule 55(1)) with stay of execution pending appeal (a full bench function under Rule 55(2)(a)) is an omnibus, defective application that must be struck out.
Court orders
#- 1.The application is struck out
- 2.The applicant is at liberty to file an appropriate application in accordance with the rules of the Court
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Rule 55(1) and Rule 55(2)(a) of the Court of Appeal Rules - single Judge jurisdiction over extension of time applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dr Ferdinand Chirure Nyongesa v Masinde Muliro University of Science & Technology & 2 others", Case Analysis (2024). Notice of Motion dated 17th May, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1453/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.