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Court of AppealOtherCivil Appeal (Application) No. E062 of 2026 (formerly KSM Civil Appeal (Application) No. 49 of 2018)

Zakayo Waswa v Miletus Charles Nyongesa

Court of Appeal
22 May 2026
PNP. Nyamweya
419 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a single Judge cannot grant a stay of execution or review a full bench judgment—such applications must go before the full Court.

What this practically means

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Executive summary

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This is a ruling by Nyamweya JA, sitting as a single Judge of the Court of Appeal at Nairobi, on the appellant's notice of application dated 7th September 2023. The application sought a stay of execution of the judgment and orders of the Court delivered on 23rd June 2023 by a full bench (Kiage, Tuiyott & Mumbi Ngugi JJA), the setting aside of that judgment, and a rehearing of the appeal. The single Judge examined Rule 55 of the Court of Appeal Rules, 2022, which governs the jurisdiction of a single Judge. Rule 55(2) expressly excludes from a single Judge's remit applications for leave to appeal, applications for stay of execution, injunction or stay of further proceedings, applications to strike out a notice of appeal or appeal, and ancillary applications. Because the prayers sought fell within these exclusions, and additionally sought review of a judgment delivered by a full bench, the Judge held that the application was outside the single Judge's jurisdiction and declined to determine it, using the familiar 'down my tools' formulation. Rather than dismiss the application, the Judge directed the Registry to list it for hearing before a full bench of the Court on a priority basis, preserving the applicant's opportunity to pursue the relief. The ruling made no order as to costs. The substantive questions of stay, setting aside and rehearing remain undetermined and await the full bench. The decision below (the 23rd June 2023 judgment) was not disturbed in any way by this ruling.

Questions the Court framed

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

  1. 1.Whether a single Judge has jurisdiction to hear an application for stay of execution, setting aside of a judgment of a full bench, and rehearing of the appeal

Key legal issues

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01

Jurisdiction of a single Judge under Rule 55 of the Court of Appeal Rules, 2022

Holding

A single Judge lacks jurisdiction to grant stay of execution or to set aside/review a judgment delivered by a full bench; such applications must go before the full Court

Reasoning

Rule 55(2)(b) expressly excludes applications for stay of execution, injunction or stay of further proceedings from the single Judge's remit. The application also sought review of a full-bench judgment, which a single Judge cannot do. The Judge therefore declined jurisdiction and referred the application to a full bench.

p. 3

Legal principles established

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  • Applications for stay of execution, injunction or stay of proceedings, and applications to set aside or review a judgment of a full bench, are reserved to the full Court and not to a single Judge under Rule 55

Court orders

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  1. 1.The Registry to list and place the application dated 7th September 2023 for hearing before a full bench of the Court on a priority basis
  2. 2.No order as to costs

The bench

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

PN
majority

Wrote the judgment

On appeal from
Court of Appeal
KSM Civil Appeal (Application) No. 49 of 2018
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules, 2022 (single Judge jurisdiction)

Relief refused

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Stay of execution, setting aside of the judgment of 23rd June 2023, and rehearing of the appeal (as sought before the single Judge)

The prayers are outside the remit of a single Judge under Rule 55; the Judge could not entertain them

p. 3

Costs

There shall be no order as to costs.

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.

It is evident that the prayers sought in the application are not within the remit of a single Judge, and particularly since they also seek to review a judgment delivered by a full bench of this Court. I must accordingly down my tools.
p. 3Single Judge jurisdiction - downing tools
Consequently, I direct the Registry of this Court to list and place the application dated 7th September 2023 for hearing before a full bench of this Court on a priority basis. There shall be no order as to costs.
p. 3Final orders - referral to full bench and costs
This rule shall not apply to— (a) an application for leave to appeal; (b) an application for a stay of execution, injunction, or stay of further proceedings;
p. 3Rule 55(2) exclusions from single-Judge jurisdiction

Issues in the judgment

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minor

Coram lists 'NYAMWEYA J.A' without initial, but signature reads 'P. NYAMWEYA'

minor

Page numbering anomalous: final page marked 'Page 3 of 2'

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, "Zakayo Waswa v Miletus Charles Nyongesa", Case Analysis (2026). Civil Appeal (Application) No. E062 of 2026 (formerly KSM Civil Appeal (Application) No. 49 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2087/eng@2026-05-22

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