Otieno v Ngani (Civil Application 67 of 2018) [2025] KECA 473 (KLR)
The bottom line
#The Court of Appeal confirmed it cannot extend time to appeal to Kenya's Supreme Court; only the Supreme Court itself can grant that extension under its own rules.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this Court has jurisdiction to extend the time within which to file the notice of appeal and application for certification to the Supreme Court
- 2.whether the application meets the threshold under the law for certification as a matter of general public importance
- 3.whether the court should grant stay of execution
Key legal issues
#Jurisdiction of the Court of Appeal to enlarge time for filing a notice of appeal and certification application to the Supreme Court
The Court of Appeal has no jurisdiction; rule 4 of the Court of Appeal Rules, 2022 governs appeals to that Court only, and extension of time for appeals to the Supreme Court lies exclusively under the Supreme Court Rules, 2020, before the Supreme Court.
The Court construed rule 4 of its own Rules as dealing with appeals to the Court of Appeal from lower courts, not appeals onward to the Supreme Court. Relying on the Supreme Court's decision in Kenya Revenue Authority v Mount Kenya Bottlers and its own decision in Patel v Lagat, it held that the Supreme Court Rules can only be invoked in the Supreme Court. Absent a valid notice of appeal, the Court was divested of jurisdiction over the entire omnibus application.
Certification of a matter of general public importance and stay pending the intended Supreme Court appeal
Not determined. These issues were not addressed because the want of jurisdiction on the first issue disposed of the application.
Having resolved the jurisdictional issue in the negative, the Court held that adjudicating certification and stay would be futile since there was no valid or proper notice of appeal on record. The entire omnibus application was struck out for incompetence rather than dismissed on its merits.
Legal principles established
#- The Court of Appeal's rule 4 power to extend time applies only to appeals within the Court of Appeal and does not extend to appeals to the Supreme Court; such extension must be sought under the Supreme Court Rules, 2020, and can only be entertained by the Supreme Court.
- An application for extension of time to appeal to the Supreme Court founded on the Court of Appeal Rules is incompetent and may be struck out, with costs.
Court orders
#- 1.The omnibus notice of motion dated 11th July 2023 is struck out for incompetence
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Not applicable - the decision under review is this Court's own judgment in Milka Akinyi Otieno v Charles Odongo Ngani, Kisumu Civil Appeal No. 67 of 2018 (delivered 17 March 2023), which had affirmed the ELC Kisii judgment of 6 October 2017
- Civil Appeal No. 67 of 2018 (Kisumu); ELC Kisii judgment of 6th October 2017
- Jurisdiction invoked
- Articles 163(3)(b) and 163(4)(b) of the Constitution; sections 15 and 15(b) Supreme Court Act; Rules 15, 32, 33, 36 and 38 Supreme Court Rules, 2020; sections 3A and 3B Appellate Jurisdiction Act; rules 1(2), 4, 12, 41, 43, 45, 49 and 54 Court of Appeal Rules, 2022 - invoked by the applicant but held not to confer jurisdiction on this Court
Relief refused
#Leave to file a notice of appeal to the Supreme Court out of time
The Court lacks jurisdiction; extension of time to appeal to the Supreme Court must be sought under the Supreme Court Rules in the Supreme Court itself
Leave to file an application for certification out of time
Same want of jurisdiction - the Court is divested of jurisdiction absent a valid notice of appeal on record
Certification that the intended appeal raises a matter of general public importance
Not reached; the application failed on the prior jurisdictional issue, rendering it futile to address the remaining issues
Stay of execution of the decree
Not reached for the same jurisdictional reason; the application was struck out
Costs
The application was struck out with costs to the respondent.
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.
rule 4 of this Court’s Rules, 2022, deals with appeals to this Court from the lower courts and not to the Supreme Court
the Supreme Court Rules can only be invoked and applied by that court and not any other
it will be an exercise in futility to address the other issues framed, for without any valid or proper notice on record, we are divested of the jurisdiction to entertain the application
The application must, therefore, fail for incompetence. It is accordingly struck out with costs to the respondent.
Issues in the judgment
#The judgment refers to the applicant inconsistently by gender pronouns, describing her as 'the applicant' but alternately 'he' and 'she'
The judgment cites Article 164(4) of the Constitution as governing appeals to the Supreme Court, which on its face concerns the Court of Appeal; the correct provision for Supreme Court appeals is Article 163(4), cited elsewhere in the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Ngani (Civil Application 67 of 2018) [2025] KECA 473 (KLR)", Case Analysis (2025). Civil Application (unnumbered on record, arising from Kisumu Civil Appeal No. 67 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/473/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.