[2024] KECA 1763 (KLR)
The Court found that not all the orders sought in the applicant's notice of motion could be heard and determined by a single judge, as some, such as stay of execution, require consideration by a full bench. Citing precedent, the Court held that in such circumstances, the prudent course is to refer the entire...
Source-derived case information.
- Citation
- [2024] KECA 1763 (KLR)
- Parties
- Applicant: Lucy Akoth Ngaji; Respondent: James Lukiri; Respondent: Vincent Kikumi; Respondent: Benjamin Samuel Adienge Mwai; Respondent: Stephen Ngotho Kamau; Respondent: Victor Onduongi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application E040 of 2024
- Procedural Posture
- Civil Application / Single Judge Referral to Full Bench
- Outcome
- Application referred to full bench for hearing.
- Judges
- JW Lessit
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Omnibus Applications, Jurisdiction of Single Judge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Akoth Ngaji
Applicant
James Lukiri
Respondent
Vincent Kikumi
Respondent
Benjamin Samuel Adienge Mwai
Respondent
Stephen Ngotho Kamau
Respondent
Victor Onduongi
Respondent
Procedural Posture
Civil Application / Single Judge Referral to Full Bench
Legal Issues
- 1 Whether a single judge of the Court of Appeal can grant all the orders sought in an omnibus application including stay of execution and leave to appeal out of time.
- 2 Whether the application should be referred to a full bench for determination.
Ratio Decidendi
The Court found that not all the orders sought in the applicant's notice of motion could be heard and determined by a single judge, as some, such as stay of execution, require consideration by a full bench. Citing precedent, the Court held that in such circumstances, the prudent course is to refer the entire application to a full bench for determination. The application was therefore directed to be listed for hearing by a full bench on a priority basis.
Court Disposition
Application referred to full bench for hearing.
Orders
- The applicant’s notice of motion dated 17th April 2024 is to be listed for hearing by a full bench of the Court of Appeal on a priority basis.
Full Case Text
Judgment text and source record
28 paragraphs
Ngaji v Lukiri & 4 others (Civil Application E040 of 2024) [2024] KECA 1763 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1763 (KLR)
Republic of Kenya
In the Court of Appeal at Mombasa
Civil Application E040 of 2024
JW Lessit, JA
December 6, 2024
Between
Lucy Akoth Ngaji
Applicant
and
James Lukiri
1st Respondent
Vincent Kikumi
2nd Respondent
Benjamin Samuel Adienge Mwai
3rd Respondent
Stephen Ngotho Kamau
4th Respondent
Victor Onduongi
5th Respondent
(Appeal from the Ruling of the Environment and Land Court of Kenya at Mombasa (N. A. Matheka, J.) dated 24th October 2023 in H.C. Petition No. 006 of 2022)
Ruling
1. The applicant Lucy Akoth Ngaji, by an application dated 17th April 2024 seeks orders as follows:2. That this Honourable Court be pleased to issue an interim order of stay of executions of the Judgment of dated 26th October, 2022 and all its consequential orders pending the hearing of the Application;3. That this Honourable Court be pleased to issue an order of stay of executions of the Judgment of Justice N. A Matheka dated 26th October, 2022 and all its consequential orders pending the hearing of the Appeal4. That the honorable court be pleased to issue leave to the Applicant to appeal the Ruling on the review of Justice N. A Matheka dated 24th October, 2023 out of time.5. That the Respondent to bear bill of cost.
2. The notice of motion application has not invoked the rule(s) under which it has been brought. I observe that the orders sought in the application are one, an order of stay of execution of the judgment of N. Matheka dated 26th October, 2022 and all its consequential orders pending the hearing of the appeal and two, an order for leave to appeal from the ruling on the review of N. Matheka, J. dated 24th October 2023 in Mombasa H.C. Petition No. 006 of 2022 out of time. The prayer for interim stay is moot.
3. The two prayers are omnibus in nature. For the order of stay of execution, the same can only be heard by a full bench. In this Court’s decision in Geothermal Development Company vs. Lantech Africa Limited (Civil Application No. E029 of 2021) [2024] KECA 269 (KLR) (8 March 2024) (Ruling) the Court held that:“22. We have understood that the reference is on the basis that, since the applicant’s application was “omnibus” in nature in that it sought diverse orders, some of which ought to be determined by a single judge and others which can only be determined by a full bench, it would have been prudent for the learned judge to refer the whole application to a full bench or, in the alternative, strike out the whole application altogether.”
4. I find that as not all the orders sought in the application could be heard by a single of this Court, I find it prudent to refer the application for consideration by a full bench. In the premises, I direct that the applicant’s notice of motion dated 17th April 2024 be listed for hearing by a full bench of this Court on a priority basis.
DATED AND DELIVERED AT MOMBASA THIS 6TH DAY OF DECEMBER, 2024. J. LESIIT………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR