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Court of AppealDismissedApplication dated 3rd February, 2025

Kemboi v Marta & another; Ruto (Objector) (Civil Appeal (Application) E002 of 2025) [2025] KECA 838 (KLR)

Court of Appeal of Kenya
16 May 2025
JMJ. MativoGOG. V. OdungaUJUnknown Third Judge
628 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a stay application because its prayers were badly drafted and expired on their own terms, proving precision in drafting is decisive.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Mativo and Odunga, JJ.A, with a third unnamed judge) dated 16th May 2025, on an application by Isaac K. Kemboi dated 3rd February 2025, brought under Rules 5(2)(b), 49 and 55(2)(b) of the Court of Appeal Rules, 2022 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The applicant sought ex parte interim orders of stay of execution and further proceedings in Eldoret Probate and Administration No. 311 of 2013, the matter of the estate of the late James Kimarta Ruto (deceased), pending the hearing of the application, pending filing of appeal, and pending hearing and determination of the appeal. The respondents opposed the motion through a replying affidavit, and the application was canvassed by rival pleadings and oral and written submissions. The court reproduced the prayers verbatim because they bore directly on the outcome, noting the anomaly of seeking ex parte orders at the inter partes stage. It identified the core problem as poor drafting: prayers 2, 3 and 4, if granted, would expire upon the hearing of the application, and there was no effective prayer for stay capable of consideration at the inter partes stage. Holding that a prayer must be specific and precise, that the orders sought were already spent, and that no court can knowingly grant an order serving no utilitarian purpose, the court dismissed the application as 'dead on arrival' with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the court should grant ex parte interim orders of stay of execution and further proceedings in Eldoret Probate and Administration No. 311 of 2013 pending the hearing of the application, pending filing of appeal, and pending hearing and determination of the appeal

Key legal issues

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01

Whether the application could be considered on the merits despite defective and spent prayers

Holding

The application was dismissed because the prayers were incapable of utile effect at the inter partes stage, making consideration of the merits an idle exercise

Reasoning

The court reproduced the prayers verbatim and observed that prayers 2, 3 and 4 sought ex parte orders to remain in force pending the hearing of the application inter partes, which was self-defeating. There was no effective prayer for stay of execution and further proceedings to consider at the inter partes stage. The court held that engaging with the merits would be futile and that the application was 'dead on arrival'.

p. 2
02

The standard required in drafting pleadings and prayers

Holding

Pleadings, and especially prayers, demand precision and an understanding of the legal principles needed to formulate a complete cause of action

Reasoning

The court criticised the applicant's drafting as the root problem. It likened a prayer to a guided missile: it must be specific and precise. Poor drafting from the outset deprived the court of any live prayer to adjudicate at the inter partes stage.

p. 2

Legal principles established

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  • A prayer sought in a court pleading must be specific and precise; defective drafting of prayers may render an application fatally and incurably defective
  • A court will not knowingly grant an order that serves no utilitarian purpose

Court orders

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  1. 1.The application dated 3rd February 2025 is dismissed with costs to the respondents

The bench

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

JM
majority

Wrote the judgment

GO
majority
UJ
majority
Jurisdiction invoked
Rule 5(2)(b), 49, 55(2)(b) of the Court of Appeal Rules, 2022 and Sections 1A, 1B, 3, 3A of the Civil Procedure Act

Relief refused

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Ex parte interim orders of stay of execution and further proceedings in Eldoret Probate and Administration No. 311 of 2013 (prayers 2, 3 and 4)

The prayers were poorly drafted and spent; granting them would serve no utilitarian purpose

p. 2

Costs

Dismissed with costs to the respondents

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.

Like a guided missile, a prayer sought in a court pleading must be specific and precise.
p. 2Precision in drafting prayers
Clearly, the orders sought are already spent. No court of law can knowingly grant an order which will serve no utilitarian purpose. Courts of law loath engaging in a futile exercise.
p. 2Futility of granting spent orders
Accordingly, the application dated 3rd February 2025 is dismissed with costs to the respondents.
p. 2Final orders

Issues in the judgment

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minor

The bench listing is incomplete: the coram shows only 'J. MATIVO' and 'G. V. ODUNGA' as named judges, but there are three signature blocks, two of which are blank placeholders reading 'JUDGE OF APPEAL', indicating a third unnamed judge

minor

The case title and case number of the appeal/application itself are not stated in the document; only the date of the application (3rd February, 2025) identifies it

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kemboi v Marta & another; Ruto (Objector) (Civil Appeal (Application) E002 of 2025) [2025] KECA 838 (KLR)", Case Analysis (2025). Application dated 3rd February, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/838/eng@2025-05-16

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