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Court of AppealDismissedCivil Application (not stated in judgment)· [2025] KECA 710 (KLR)

Otieno v Sule & 3 others (Civil Application E097 of 2024) [2025] KECA 710 (KLR)

Court of Appeal of Kenya
25 April 2025
HOH. A. Omondi
1,504 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse an 18-month delay in serving an appeal notice, warning that waiting for other cases' outcomes won't be rewarded.

What this practically means

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Executive summary

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Perez Atieno Sule obtained a judgment of the Environment and Land Court at Kisumu on 17th January 2023 declaring her owner of land parcels Kisumu Wathorego/5155, 5156 and 5157 by adverse possession. She lodged a Notice of Appeal on 18th January 2023 but served the 1st respondent only on 24th June 2024. She then filed a single application under rule 4 of the Court of Appeal Rules 2022 seeking both a stay of execution of the trial judgment and leave to serve the Notice of Appeal out of time. H. A. Omondi, JA, sitting as a single Judge, held that the stay prayer was outside the single Judge's jurisdiction because rule 55 reserves applications for stay of execution for a full bench; the applicant was given liberty to list that prayer before the full bench. On the extension-of-time prayer, the Court applied the classic parameters from Leo Sila Mutiso v. Hellen Wangari Mwangi and Paul Wanjohi Mathane. The 18-month delay was inordinate; the claimed inadvertence was unexplained; and the applicant had adopted a 'rabbit in the woods attitude', waiting to see whether other respondents' applications to set aside the judgment (dismissed in December 2023) would succeed, and then waited a further seven months to file. The extension-of-time application was dismissed with costs to the 1st respondent. The judgment binds lower courts on two points: a single Judge of the Court of Appeal cannot grant stay of execution, and the Rule 4 discretion must be exercised judiciously, weighing delay, reasons, prejudice and public importance.

Key legal issues

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01

Jurisdiction of a single Judge to grant stay of execution

Holding

A single Judge cannot grant stay of execution; the prayer is reserved for a full bench under rule 55, and the Court sitting as a single Judge declines to determine it.

Reasoning

Rule 55(2) of the Court of Appeal Rules excludes applications for stay of execution, injunctions or stay of further proceedings from the categories heard by a single Judge. The applicant's omnibus application sought two prayers, one outside the single Judge's competence. The Court therefore declines to render a decision on that prayer despite submissions from both parties, and grants liberty to list it before the full bench.

p. 3
02

Extension of time to serve the Notice of Appeal out of time

Holding

The application is dismissed. The 18-month delay, the unexplained 'inadvertence' and the strategic waiting on other respondents' setting-aside applications do not merit the discretionary indulgence.

Reasoning

Applying the Rule 4 factors from Leo Sila Mutiso and Paul Wanjohi Mathane, the Court found the delay inordinate. The applicant adopted a 'rabbit in the woods attitude', waiting to see whether the other respondents' applications to set aside the judgment would succeed. The last such application was dismissed on 14th December 2023, yet the present application was not filed until 18th July 2024, a further 7 months, and the nature of the claimed inadvertence was never disclosed.

p. 3

Legal principles established

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  • An application for stay of execution of a lower court's judgment cannot be heard by a single Judge of the Court of Appeal but must be determined by a full bench under rule 55 of the Court of Appeal Rules
  • The Rule 4 discretion to extend time is unfettered but must be exercised judiciously, guided by the period of delay, the reasons for the delay, prejudice to the respondent and interested parties, and whether the matter raises issues of public importance
  • The locus classicus parameters for extension of time are 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

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  1. 1.The Court declined to entertain the prayer for stay of execution for want of jurisdiction, with liberty to the applicant to list that prayer before the full bench
  2. 2.The application for extension of time to serve the Notice of Appeal out of time is dismissed
  3. 3.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2022rule 4
  • Court of Appeal Rules, 2022rule 5(2)(b)
  • Court of Appeal Rules, 2022rule 55
  • Court of Appeal Rules, 2022rule 77
  • Court of Appeal Rules, 2022rule 79(1)

Cases cited (3)

  • Bartilol & 3 Others v. Bartilol & Another
    (Civil Application 001 of 2024) [2024] KECA 607 (KLR) (24 May 2024)
  • Paul Wanjohi Mathane v. Duncan Gichare Mathenge
    [2013] eKLR
  • Leo Sila Mutiso v. Hellen Wangari Mwangi
    [1999] 2 EA 231
On appeal from
Environment and Land Court at Kisumu
not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2022 (extension of time) and Rule 5(2)(b) (stay of execution, for full bench)

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, "Otieno v Sule & 3 others (Civil Application E097 of 2024) [2025] KECA 710 (KLR)", Case Analysis (2025). Civil Application (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/710/eng@2025-04-25

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