[2024] KECA 765 (KLR)
The court determined that it lacked jurisdiction as a single judge to entertain the application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The judge held that such applications must be heard by a full bench, not a single judge, as expressly provided by Rule 55(2)(b). Consequently, the...
Source-derived case information.
- Citation
- [2024] KECA 765 (KLR)
- Parties
- Applicant: Milka Akinyi Otieno; Respondent: Charles Odongo Ngani
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 67 of 2018
- Procedural Posture
- Civil Appeal Application / Ruling on Application for Stay of Execution Pending Appeal to the Supreme Court
- Outcome
- Application not determined; matter referred to full bench.
- Judges
- HA Omondi
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Court Powers Single Judge, Certification for Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milka Akinyi Otieno
Applicant
Charles Odongo Ngani
Respondent
Procedural Posture
Civil Appeal Application / Ruling on Application for Stay of Execution Pending Appeal to the Supreme Court
Legal Issues
- 1 Whether a single judge of the Court of Appeal has jurisdiction to hear and determine an application for stay of execution under Rule 5(2)(b).
- 2 Whether the application for stay of execution should be heard by a full bench or a single judge.
Ratio Decidendi
The court determined that it lacked jurisdiction as a single judge to entertain the application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The judge held that such applications must be heard by a full bench, not a single judge, as expressly provided by Rule 55(2)(b). Consequently, the application was not considered on its merits and was instead directed to be listed for hearing before a full bench of the Court of Appeal.
Court Disposition
Application not determined; matter referred to full bench.
Orders
- The application is to be listed for hearing on priority before a full bench of the Court of Appeal.
Full Case Text
Judgment text and source record
23 paragraphs
Otieno v Ngani (Civil Appeal (Application) 67 of 2018) [2024] KECA 765 (KLR) (21 June 2024) (Ruling)
Neutral citation: [2024] KECA 765 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Appeal (Application) 67 of 2018
HA Omondi, JA
June 21, 2024
(IN CHAMBERS)
Between
Milka Akinyi Otieno
Applicant
and
Charles Odongo Ngani
Respondent
(Being an application from the Judgment of the Court of Appeal at Kisumu (M’inoti, Kantai & Tuiyott, JJ.A.) dated 17th March 2023 in Civil Appeal No. 67 of 2018 Civil Appeal 67 of 2018,
Civil Case 1151 of 2016 )
Ruling
1. The applicant in its; submissions refers to an application dated 11th June 2022, although no such Notice of Motion has been availed to this Court, despite requests I made to the Court of Appeal Kisumu Civil Registry. The only document that comes close to what may be a replication of the contents in the intended application, is the certificate of urgency itself; the document refers to a judgment delivered on 17th March 2023, whose outcome has caused dissatisfaction to the applicant is dissatisfied and she intends to appeal.
2. She expresses apprehension that there is imminent threat of execution of the Judgment of the Environment and Land Court by the respondent pending the hearing and determination of the appeal to the Supreme Court. The applicant explains that she had initially been granted stay during the period which the matter was proceeding before the Court of Appeal but which stay lapsed upon the delivery of the Judgment of the Court thereby leaving the applicant exposed to execution by the respondent. She thus seeks orders of stay so as to ensure that the intended appeal to the Supreme Court (which has reasonable chances of success) is not rendered nugatory.
3. The respondent's replying affidavit is to an application for certification which is not attached nor uploaded.
4. Whatever the case, the nature of prayers sought, squarely places this matter under Rule 5(2)(b), which ought to be dealt as provided under Rule 55 as follows:55. (1)Each application, other than an application specified in sub-rule (2), shall be heard by a single judge:Provided that such application may be adjourned by the judge for determination by the Court.(2)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;c.an application to strike out a notice of appeal or an appeal; ord.an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of a hearing.
5. I therefore decline to deal with the matter as a single judge; and direct that the same be listed for hearing on priority before a full bench
DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF JUNE 2024. H. A. OMONDIJUDGE OF APPEALI certify that this is a true copy of the original.signedDEPUTY REGISTRAR