Clair Nyabayo v Shop and Deliver Limited T/A Betika
The bottom line
#Kenya's Court of Appeal ruled only a full bench, not a single judge, can decide applications for leave to appeal, and set aside the ruling.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to hear applications for leave to appeal
Rule 55 of the Court of Appeal Rules expressly excludes applications for leave to appeal from matters that a single Judge may hear; the full court hears them in the first instance. The single Judge's determination of leave was therefore a nullity.
The court examined rule 55, which designates which applications are heard by a single Judge and which go to the full court. Sub-rule (2)(a) expressly excludes applications for leave to appeal from the single Judge's list. Although the single Judge's conclusion on the effect of section 62 of the Betting, Lotteries and Gaming Act may have been correct, she lacked jurisdiction to grant or refuse leave, and a decision without jurisdiction is void and must be set aside ex debito justitiae.
Scope of reference from a single Judge's decision
On a reference, the full court may only revisit matters actually determined by the single Judge; a prayer not determined below cannot be entertained on reference.
The applicant had also sought extension of time, but the single Judge made no finding on that prayer, apparently treating it as moot once leave was refused. Since the reference jurisdiction is confined to reviewing the single Judge's determination, the full court could not itself decide the extension-of-time prayer. The applicant must file a fresh application separating the prayers and place them before a bench with jurisdiction.
Standard for interfering with a single Judge's discretion on reference
The full bench interferes only on established grounds: irrelevant or ignored matters, misapprehension of law or evidence, or a plainly wrong decision.
Relying on John Koyi Waluke vs. Moses Masika Wetangula & 2 others, the court restated the classic grounds for interference with discretionary decisions on reference. In this case the court did not need to reach that standard substantively, because the antecedent defect was lack of jurisdiction in the single Judge, which vitiates the ruling regardless of its merits.
Legal principles established
#- Under rule 55 of the Court of Appeal Rules, applications for leave to appeal are reserved to the full court and a single Judge has no jurisdiction to hear and determine them.
- A decision made without requisite jurisdiction is a nullity and must be set aside ex debito justitiae, even if it could have been correct on the merits.
- On a reference under rule 57, a full bench interferes with a single Judge's exercise of discretion only where an irrelevant matter was considered, a relevant matter ignored, the law or evidence misapprehended, or the decision was plainly wrong.
Court orders
#- 1.The ruling of M. Ngugi, JA dated 7th March 2025 is set aside
- 2.No order as to costs
- 3.The applicant is at liberty to file a fresh application segregating the single Judge's prayer for extension of time and the full court prayers for leave to appeal, and have them fixed for hearing before a bench with jurisdiction
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, M. Ngugi, JA)
- Application dated 18th October 2024; intended appeal from Nairobi HCCA No. E191 of 2023
- Jurisdiction invoked
- Rule 57 of the Court of Appeal Rules (reference to the full court from a decision of a single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clair Nyabayo v Shop and Deliver Limited T/A Betika", Case Analysis (2026). Reference from the ruling of M. Ngugi, JA dated 7th March 2025 (application dated 18th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/213/eng@2026-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.