Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others
The bottom line
#No case, no orders: Supreme Court can't grant a stay without an active appeal.
What this practically means
#Okiya Omtatah asked the Supreme Court to stop enforcement of a Court of Appeal decision on currency printing tenders. But the Court had already refused to give him more time to file his main appeal. Without a live appeal, the Court said it had no power to grant a stay. It also ordered him to pay the other parties' legal costs, since this was a tender dispute, not a public interest case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the subject matter of the intended appeal is still alive and justiciable
- 2.Whether the intended appeal required certification under Article 163(4)(b) of the Constitution
- 3.Whether the computation of time under Rule 33(1) of the Supreme Court Rules violates the Constitution and the principles of natural justice
- 4.Whether there was inordinate delay in making this Application
- 5.Whether the Judgment of the Court of Appeal should be stayed
- 6.Whether costs are payable
Key legal issues
#Whether the Supreme Court has jurisdiction to grant a stay of execution of the Court of Appeal judgment when there is no substantive appeal pending before it.
The Supreme Court lacks jurisdiction to grant a stay of execution where there is no substantive appeal before it, as the petition of appeal is the foundation for any interim orders.
The Court had previously declined the applicant's request for extension of time to file his petition of appeal out of time for want of jurisdiction. Consequently, there was no valid appeal pending before the Court. The Court held that it could not grant orders in a vacuum; the petition of appeal is the substratum of a party's case, and without it, no interim orders can ordinarily issue. Therefore, the application for stay was dismissed.
Whether costs should be awarded against the applicant in a matter involving public interest.
Costs follow the event, and the applicant was ordered to pay costs to all respondents because the matter was not one of general public importance but a tender award issue involving private and public entities.
The Court applied the principle that costs follow the event, which the applicant had himself argued in his favour. The Court distinguished this case from public interest litigation, noting that the dispute concerned a tender for printing currency, involving both private and public entities. The applicant was expected to be aware of the consequences of his actions, including costs.
Legal principles established
#- A stay of execution requires a pending substantive appeal; courts cannot grant orders in a vacuum.
- The petition of appeal is the foundation for any interim orders; without it, jurisdiction is lacking.
- Costs follow the event even in cases brought by public interest litigants, unless the matter is truly of general public importance.
- A tender dispute involving private and public entities does not automatically qualify as public interest litigation for cost purposes.
Court orders
#- 1.The Application dated 15th November 2018 is hereby dismissed.
- 2.Costs are awarded to all the Respondents as against the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 116 of 2018 consolidated with Civil Appeal No. 119 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
Relief refused
#Stay of execution of the Judgment and decree/orders granted on 12th October, 2018 by the Court of Appeal
The Court lacked jurisdiction to determine the application for stay because the application for extension of time to file the petition of appeal out of time had been declined for want of jurisdiction, and there was no substantive appeal before the Court.
Costs
Costs are awarded to all the Respondents as against the Applicant.
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.
In Application No. 32 of 2018, we declined the prayer by the Applicant herein to extend time to file his Petition of Appeal out of time for want of jurisdiction. It follows therefore that we have no jurisdiction to determine this application for stay of execution of Judgment of the Court of Appeal.
Orders cannot be granted in a vacuum or on a whim. It is the Petition of Appeal that indicates the substratum of a party's case and whether interim orders should be granted or not. Without it, no orders can ordinarily issue.
The Application dated 15th November 2018 is hereby dismissed.
Costs are awarded to all the Respondents as against the Applicant.
Key timeline
#Practical implications
#File appeal before seeking stay
Before seeking a stay at the Supreme Court, ensure a substantive petition of appeal is properly on record. The Court will not entertain interim relief in a procedural vacuum. If you miss a deadline and cannot extend it, you lose both the appeal and any chance to halt execution. Always file the main appeal first.
Tender disputes may attract costs
If you challenge a tender award, even as a public interest litigant, courts may order you to pay the other side's legal costs if the case is not truly of general public importance. The Supreme Court held that a currency printing tender involves private and public entities, so the 'costs follow the event' rule applies. Budget for potential adverse cost orders.
Stay requires an active appeal
If you lose in the Court of Appeal and want to stop enforcement while seeking Supreme Court review, you must first have a valid appeal pending. The Supreme Court will not grant a stay if your main appeal is out of time or not filed. Check your deadline and file the appeal immediately, or you may be stuck with the judgment against you.
Frequently asked questions
#Can I get a stay of execution in the Supreme Court of Kenya without filing an appeal?+
No. The Supreme Court cannot grant a stay if there is no substantive appeal before it. The petition of appeal is the foundation for any interim orders. Without it, the Court lacks jurisdiction to stop enforcement of a judgment.
What happens if my application for extension of time to appeal is denied in Kenya?+
If the Court refuses to extend time, you have no valid appeal. Consequently, you cannot apply for a stay of execution either. The Court will dismiss any stay application for lack of jurisdiction, as happened in Okiya Omtatah's case.
Do I have to pay costs if I lose a public interest case in Kenya?+
Not always, but it depends. Courts usually waive costs in genuine public interest matters. However, if the case involves private commercial interests, like a tender dispute, the principle 'costs follow the event' applies, and you may be ordered to pay the other side's legal fees.
What is the 'costs follow the event' rule in Kenya?+
This rule means the losing party pays the winning party's legal costs. Courts apply it unless the case is of general public importance. In the Omtatah case, the Supreme Court applied it because the dispute was about a currency printing tender involving private and public entities.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngetich v Misik & another; Indomitable Auctioneers (Interested Party) (Enviromental and Land Originating Summons 97 of 2001) [2025] KEELC 3359 (KLR)[2025] KEELC 3359 (KLR)24 Apr 2024
- Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another[2023] KESC 61 (KLR)30 Jun 2023
- Emmanuel Wanjala Wamalwa v Robert Pavel Oimeke & 5 others [2020] KEELRC 419 (KLR)[2020] KEELRC 419 (KLR)6 Oct 2020
- Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others[2020] KESC 25 (KLR)4 Sept 2020followed
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others", Case Analysis (2019). Application 33 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/27/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.