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Court of AppealOtherNot stated in judgment (Notice of Motion dated 17th April 2024, Mombasa)

Ngaji v Lukiri & 4 others (Civil Application E040 of 2024) [2024] KECA 1763 (KLR)

Court of Appeal of Kenya
6 December 2024
457 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that mixed applications must go to a full bench, so Lucy Akoth Ngaji's stay and extension-of-time requests will be heard by three judges.

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 Mombasa delivered by Lesiit, JA on 6th December 2024, in an application by Lucy Akoth Ngaji dated 17th April 2024. The applicant sought: an interim stay of execution of a judgment of Matheka, J dated 26th October 2022 in Mombasa H.C. Petition No. 006 of 2022 and its consequential orders; a stay of that judgment pending the hearing of an appeal; and leave to appeal out of time against the judge's ruling on review dated 24th October 2023. The court observed that the notice of motion did not invoke any rule under which it was brought. It characterised the prayers as omnibus: while some could be determined by a single judge, the order of stay of execution can only be heard by a full bench. Relying on the Court of Appeal's own decision in Geothermal Development Company vs. Lantech Africa Limited, which endorsed referring the whole of an omnibus application to a full bench or striking it out, the judge held it prudent to refer the entire application. The interim stay prayer was noted as moot. The court made no substantive orders on the prayers; instead it directed that the notice of motion be listed for hearing by a full bench on a priority basis. No costs order was made. The decision below was not disturbed; the substantive applications remain pending before the full bench.

Questions the Court framed

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

  1. 1.Whether an omnibus application seeking orders that some fall for determination by a single judge and others only by a full bench should be referred in whole to a full bench

Key legal issues

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01

Whether a single judge of the Court of Appeal may determine an omnibus application containing prayers reserved for a full bench

Holding

No. Where an application combines prayers that a single judge can grant with prayers reserved for a full bench (such as stay of execution), the prudent course is to refer the entire application to a full bench.

Reasoning

The court observed that the application was defective in not invoking any rule, and that its prayers were omnibus. Relying on Geothermal Development Company vs. Lantech Africa Limited, where the Court endorsed referring or striking out the whole of an omnibus application, the single judge held that since stay of execution can only be heard by a full bench, the entire notice of motion should go to a full bench on a priority basis rather than being partially dealt with.

p. 2

Legal principles established

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  • An omnibus application before the Court of Appeal seeking diverse orders, some of which only a full bench can determine, should be referred to a full bench rather than partially determined by a single judge

Court orders

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  1. 1.The applicant's notice of motion dated 17th April 2024 be listed for hearing by a full bench of the Court on a priority basis

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
Mombasa H.C. Petition No. 006 of 2022
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over applications incidental to an intended appeal; the specific rule under which the application was brought was not invoked (the Court noted it 'has not invoked the rule(s) under which it has been brought')

Relief refused

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Interim stay of execution of the judgment of 26th October 2022

The prayer was moot as framed (stay pending hearing of the application)

p. 2

Substantive determination of stay of execution and extension of time prayers by the single judge

Not all orders sought could be heard by a single judge; stay of execution can only be heard by a full bench

p. 2

Costs

No costs order made; the applicant's prayer that the Respondent bear the bill of costs was not determined, the application having been referred to a full bench

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.

The two prayers are omnibus in nature. For the order of stay of execution, the same can only be heard by a full bench.
p. 2Allocation of business between single judge and 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.
p. 2Final orders - reference to full bench
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
p. 2Principle from Geothermal Development Company vs. Lantech Africa Limited on omnibus applications

Issues in the judgment

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minor

The application under consideration did not invoke any rule of the Court as required

minor

The respondent is not named anywhere in the judgment and the case number of the application before the Court of Appeal is not given

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, "Ngaji v Lukiri & 4 others (Civil Application E040 of 2024) [2024] KECA 1763 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 17th April 2024, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1763/eng@2024-12-06

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