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Court of AppealStruck OutNot stated in the judgment

Sirgoi Holdings Limited & another v Sitienei (Civil Application E188 of 2024) [2025] KECA 1287 (KLR)

Court of Appeal of Kenya
11 July 2025
1,943 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a Court application for using the wrong constitutional article, repealed rules, and bundling incompatible requests together.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu, delivered by P. Nyamweya, JA, sitting as a single Judge, striking out an omnibus application dated 4th December 2024. The applicants sought certification as urgent, extension of time to file and serve the Record of Appeal and the appeal itself, and stay of execution of a trial court judgment entered on 5th October 2023, invoking Article 59 of the Constitution, the Appellate Jurisdiction Act and the Court of Appeal Rules, 2010. The court identified two preliminary issues. First, the application was an omnibus one, and prayers 4 and 5 (stay of execution) could only be granted by a full bench under Rule 55 of the Court of Appeal Rules, 2022, so a single Judge lacked jurisdiction over them. Second, the respondent objected that the application invoked irrelevant and repealed provisions: Article 59 instead of Article 159, and the repealed 2010 Rules. The applicants conceded the errors, pleading typographical mistake and invoking the overriding objective. The court, relying on the Supreme Court's decision in Hermanus Phillipus Steyn v Giovanni Gnnechi-Ruscone, held that a court must be moved under correct provisions and that no court can be moved on the basis of a repealed law; the error had jurisdictional implications and was not curable under Article 159(2)(d). Relying on Abok James Odera v John Patrick Machira, the court further held that the oxygen principle does not excuse counsel's negligent acts or lapses. The application was struck out with costs to the respondent, with liberty to file a fresh competent application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an omnibus application seeking reliefs that a single Judge has no jurisdiction to grant is competent
  2. 2.Whether an application founded on a wrong Article of the Constitution and repealed rules is fatally defective
  3. 3.Whether the overriding objective ('oxygen principle') can cure invocation of repealed provisions and counsel's mistakes

Key legal issues

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01

Competence of an omnibus application

Holding

An application combining multiple reliefs governed by different rules and principles is incurably defective and liable to be struck out

Reasoning

Citing Ringera J. in Pyaralalmhandbheru Rajput v Barclays Bank, the court held that each relief in an omnibus application is governed by different rules and distinct judicial principles, making proper adjudication impossible. Additionally, prayers 4 and 5 (stay of execution) fell outside the single Judge's jurisdiction, as Rule 55 of the Court of Appeal Rules, 2022 reserves such orders for a full bench.

p. 2
02

Invocation of a wrong constitutional article and repealed rules

Holding

Citing Article 59 instead of Article 159 and reliance on the repealed 2010 Rules rendered the application fatally defective

Reasoning

The court accepted the respondent's submission, relying on the Supreme Court's Steyn decision, that a court must be moved under the correct provisions. The applicants conceded the error. The court held the mistake was not a mere procedural technicality under Article 159(2)(d), had jurisdictional implications, and that it could not amend pleadings by imputing proper provisions without an application and a hearing.

p. 3
03

Scope of the overriding objective

Holding

The oxygen principle does not extend to excusing counsel's mistakes, negligence or lapses

Reasoning

Relying on Abok James Odera v John Patrick Machira, the court accepted that while the overriding objective confers latitude to overcome past technicalities, it does not cover situations aimed at subverting expeditious disposal of cases, mistakes or lapses of counsel, or negligent acts. Counsel are required to be abreast of applicable laws at all times, so the inadvertent citation of repealed provisions could not be cured by the oxygen principle.

p. 4

Legal principles established

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  • A single Judge of the Court of Appeal has no jurisdiction to grant stay of execution of a decree; such orders can only be granted by a full bench under Rule 55 of the Court of Appeal Rules, 2022
  • A court must be moved under the correct provisions of the law; no court can be moved on the basis of a repealed law, and invoking repealed provisions is not a mere technicality curable under Article 159
  • The overriding objective cannot be used to excuse negligent acts, inadvertent mistakes or lapses of counsel
  • Omnibus applications are incurably defective and candidates for striking out

Court orders

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  1. 1.The application dated 4th December 2024 is struck out with costs to the respondent
  2. 2.The applicants are at liberty to file a fresh competent application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Trial court (not named)
null
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules, 2022 (invoked by the applicants); the Court sitting as a single Judge

Relief refused

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Extension of time to file and serve the Record of Appeal and the Appeal, and stay of execution (prayers 2, 3, 4 and 5)

The application was an incompetent omnibus application invoking a wrong constitutional article and repealed rules; stay of execution could only be granted by a full bench under Rule 55

p. 4

Costs

Struck out with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I consequently find the application dated 4th December 2024 to be incompetent for the above reasons, and it is accordingly struck out with costs to the respondent. The applicants are however at liberty to file a fresh competent application.
p. 4Final orders - striking out
No court can be moved on the basis of a repealed law. What right if at all does a repealed law give? The answer is clear: none.
p. 3Invoking repealed law
the oxygen principle cannot be used to excuse the negligent acts or inadvertent mistakes and lapses of counsel, who are required to be abreast with the applicable laws at all times
p. 4Overriding objective
This Court, sitting as a single Judge, therefore does not have jurisdiction to consider prayers 4 and 5 and cannot render a decision in respect of the same.
p. 2Single Judge jurisdiction on stay of execution

Issues in the judgment

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material

Applicants' names and the case title/case number are not disclosed anywhere in the judgment; only the 1st applicant's director (Engineer Elnathan Chumo) and the date of the application are identified

minor

Quoted passages contain typographical errors ('difierent', 'afiording', 'afiordable', 'plaintifi's') reproduced as they appear in the judgment

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, "Sirgoi Holdings Limited & another v Sitienei (Civil Application E188 of 2024) [2025] KECA 1287 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1287/eng@2025-07-11

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