Ongaga v Mirambo & 2 others (Civil Application E279 of 2023) [2025] KECA 645 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a stay application because the applicant filed no notice of appeal and attached no decision being challenged.
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 had jurisdiction under Rule 5(2) of the Court of Appeal Rules to entertain the application for stay of execution
- 2.Whether there existed a decision of the Environment and Land Court, Nyamira capable of being stayed by the Court
Key legal issues
#Whether the Court of Appeal could entertain a Rule 5(2)(b) application where the decision sought to be appealed and stayed was not identified or annexed
The application was dismissed because the Court could not determine whether it had jurisdiction or whether there was any decision of the Environment and Land Court capable of being stayed.
The applicant, acting in person, did not make clear whether he challenged the Magistrate's court decision or that of the Environment and Land Court, and no ruling, proceedings, decree or order was annexed. The Court surmised the application invoked Rule 5(2) of the Court of Appeal Rules, which required a notice of appeal under Rule 77. Neither party placed the proper facts and pleadings before the Court, and the 1st respondent denied demolishing any property.
The duty of litigants and counsel to place the proper facts and pleadings before the Court
The Court criticised both parties, holding that counsel for the respondent could not be excused on the same basis as a lay litigant for failing to place proper facts and pleadings before the Court.
Whereas the in-person applicant might be excused for the deficiencies in his application, counsel for the 1st respondent ought to have placed the proper facts and pleadings before the Court. The replying affidavit and written submissions were so at variance that the Court concluded the application was neither filed, prosecuted nor resisted with the seriousness and diligence it deserved, and this justified dismissal with no order as to costs.
Legal principles established
#- An applicant seeking stay of execution under Rule 5(2) of the Court of Appeal Rules must lodge a notice of appeal in the appropriate superior court's registry under Rule 77 and place before the Court the decree or order intended to be challenged, failing which the Court cannot assume jurisdiction
Court orders
#- 1.Dismissal of the application for stay of execution
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (Nyamira)
- Jurisdiction invoked
- Rule 5(2) of the Court of Appeal Rules (invoked, though the Court could not confirm jurisdiction)
Relief refused
#Stay of execution of the judgment and decree of the Environment and Land Court
The Court could not discern with certainty that it had jurisdiction, or that there was any identifiable decision of the Environment and Land Court capable of being stayed, since no notice of appeal, ruling, decree or order was placed before it
Costs
No orders as to costs - each party to bear their own costs; the Court stated "to dismiss the application but with no orders as to costs since the 1st respondent did not aid the court at all in putting the facts in support of or in opposition to the application in the proper perspective"
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.
we are unable to discern, with certainty, whether we have jurisdiction, in the first place, to consider the applicant's application; and secondly, whether indeed there was any decision made by the Environment and Land Court, Nyamira capable of being stayed by this Court
The only order available to the Court, in such circumstances, is to dismiss the application but with no orders as to costs since the 1st respondent did not aid the court at all in putting the facts in support of or in opposition to the application in the proper perspective.
this application was neither filed, prosecuted nor resisted with the seriousness and diligence it deserved
Issues in the judgment
#The judgment does not state the appeal or application number under which the notice of motion was filed; the case number recorded is drawn from the motion itself
The judgment refers to the decision of the Environment and Land Court but never identifies whether it was a judgment or a ruling, and no decision date is stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongaga v Mirambo & 2 others (Civil Application E279 of 2023) [2025] KECA 645 (KLR)", Case Analysis (2025). Notice of Motion dated 19th August 2024 (Civil Application, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/645/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.