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Court of AppealPartially AllowedE356 of 2023 and E357 of 2023 (consolidated)

Kihumba v Kimotho & another (Civil Application E356 & E357 of 2023 (Consolidated)) [2024] KECA 345 (KLR)

Court of Appeal of Kenya
15 March 2024
742 words in judgment
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The bottom line

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The Court of Appeal gave an applicant more time to file an appeal but refused to hear the stay request because no notice of appeal had been filed.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by P. O. Kiage, JA, on 15th March 2024, in two consolidated applications (E356 of 2023 and E357 of 2023) by the same parties urging identical prayers. The applicant sought extension of time to lodge and serve a notice of appeal against the judgment and decree of Lady Justice A. Omollo of the Environment and Land Court delivered on 22nd June 2023, together with a stay of that judgment's execution. On procedure, the judge consolidated the two applications and held that the stay prayer could not be entertained: under Rule 5(2)(b) a stay application requires a properly filed notice of appeal, and under Rule 55(2) stay applications are heard by the full Court, not a single judge. Only the Rule 4 extension prayer was determined. Applying the classic Leo Sila Mutiso parameters - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - the judge found the 21-day delay explained by the applicant's change of advocates and a second legal opinion, held the delay not disproportionate, and noted the absence of opposition. The motion was allowed insofar as time was extended, with the applicant required to lodge the notice of appeal within seven days. Costs of the motion were made costs in the intended appeal. The stay prayer was not granted, remaining open to the applicant once the notice of appeal is on record and before the full Court.

Questions the Court framed

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

  1. 1.Whether the two applications with different case numbers but identical prayers should be consolidated
  2. 2.Whether a single judge may entertain an application for stay of execution under Rule 5(2)(b) where no notice of appeal is on record
  3. 3.Whether time should be extended under Rule 4 for lodging and serving the notice of appeal, applying the Leo Sila Mutiso factors

Key legal issues

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01

Whether to extend time under Rule 4 to lodge and serve a notice of appeal where the applicant changed advocates and obtained a second legal opinion after the statutory 14-day period lapsed

Holding

Extension granted: a 21-day delay explained by the change of advocates and a second opinion was plausible and not disproportionate, and the application was unopposed.

Reasoning

The judge applied the Leo Sila Mutiso parameters. The delay was 21 days beyond the statutory 14-day period. The reason offered - that former advocates advised against an appeal and the applicant sought alternative advice - was found plausible. The delay was held not disproportionate, and the absence of opposition made the exercise of discretion in the applicant's favour easier. The extension was conditional on lodging the notice of appeal within seven days.

p. 2
02

Whether a single judge could determine the stay of execution prayer

Holding

No: the stay prayer was incompetent before a single judge because no notice of appeal was on record and Rule 55(2) reserves stay applications for the full Court.

Reasoning

The court distinguished between the extension-of-time prayer (properly before a single judge under Rule 4) and the stay prayer. Under Rule 5(2)(b), stay requires a filed notice of appeal, which was absent. Further, under Rule 55(2), stay applications fall to be heard by the full Court, not a single judge. The judge therefore declined to deal with the stay prayer and proceeded only with the extension prayer.

p. 2

Legal principles established

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  • An application for stay of execution under Rule 5(2)(b) requires a properly filed notice of appeal on record, and such an application may be heard only by the full Court, not a single judge.
  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The two applications (E356 of 2023 and E357 of 2023) consolidated and considered jointly as one application
  2. 2.Prayer for stay of execution not dealt with, being incompetent before a single judge and premature absent a filed notice of appeal
  3. 3.Extension of time granted: the applicant to lodge the notice of appeal within seven (7) days of the date of the order
  4. 4.Costs of the motion to be in the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (with Article 159(2)(d) of the Constitution invoked by the applicant)
Consolidated with
E357 of 2023

Relief refused

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Stay of execution of the judgment and decree of Lady Justice A. Omollo delivered on 22nd June 2023

No properly filed notice of appeal on record, and an application for stay of execution can only be heard by the full Court, not a single judge

p. 2

Costs

Costs of this motion shall be in the intended appeal.

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.

In the result the motion dated 27th July 2023, is allowed. I accordingly extend time to the end that the applicant shall lodge the notice of appeal within seven (7) days of the date of this order.
p. 2Final orders - extension of time granted
Costs of this motion shall be in the intended appeal.
p. 2Costs order
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
p. 2Discretionary nature of extension of time
pursuant to Rule 5(2)(b) of this Court's Rules, one can only make an application for stay of execution when there's a properly filed notice of appeal on record which is not the case herein
p. 2Precondition to stay of execution
in accordance with Rule 55(2) of the Rules, an application for stay of execution can only be heard by the Court and not a single judge
p. 2Jurisdiction of single judge vs full Court on stay applications

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kihumba v Kimotho & another (Civil Application E356 & E357 of 2023 (Consolidated)) [2024] KECA 345 (KLR)", Case Analysis (2024). E356 of 2023 and E357 of 2023 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/345/eng@2024-03-15

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