Sirgoi Holdings Limited & another v Sitienei (Civil Application E188 of 2024) [2025] KECA 1287 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Court application for using the wrong constitutional article, repealed rules, and bundling incompatible requests together.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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an omnibus application seeking reliefs that a single Judge has no jurisdiction to grant is competent
- 2.Whether an application founded on a wrong Article of the Constitution and repealed rules is fatally defective
- 3.Whether the overriding objective ('oxygen principle') can cure invocation of repealed provisions and counsel's mistakes
Key legal issues
#Competence of an omnibus application
An application combining multiple reliefs governed by different rules and principles is incurably defective and liable to be struck out
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.
Invocation of a wrong constitutional article and repealed rules
Citing Article 59 instead of Article 159 and reliance on the repealed 2010 Rules rendered the application fatally defective
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.
Scope of the overriding objective
The oxygen principle does not extend to excusing counsel's mistakes, negligence or lapses
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 Counsel are required to be abreast of applicable laws at all times, so the inadvertent citation of repealed provisions could not be cured by the oxygen principle.
Legal principles established
#- 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
#- 1.The application dated 4th December 2024 is struck out with costs to the respondent
- 2.The applicants are at liberty to file a fresh competent application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Struck out with costs to the respondent
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.
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.
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.
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
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.
Issues in the judgment
#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
Quoted passages contain typographical errors ('difierent', 'afiording', 'afiordable', 'plaintifi's') reproduced as they appear in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.