Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedReference from the ruling of M. Ngugi, JA dated 7th March 2025 (application dated 18th October 2024)

Nyabayo v Shop and Deliver Limited t/a Betika (Civil Application E564 of 2024) [2026] KECA 213 (KLR)

Court of Appeal of Kenya
6 February 2026
1,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled only a full bench, not a single judge, can decide applications for leave to appeal, and set aside the ruling.

What this practically means

#

Executive summary

#
This is a full-court reference under rule 57 of the Court of Appeal Rules against the ruling of M. Ngugi, JA dated 7th March 2025, which dismissed Clair Nyabuto's application for leave to appeal against a High Court judgment (Mabeya, J., 10th September 2024, Nairobi HCCA No. E191 of 2023) upholding the Betting Control & Licensing Board's award of Kshs 1,000,000 in a betting dispute with Betika. The single Judge had held that section 62 of the Betting, Lotteries and Gaming Act bars any appeal from a High Court decision on Board appeals, leaving this Court without jurisdiction. The full court did not engage that substantive question. Instead, on its own motion it examined which court hears applications for leave to appeal under rule 55 of the Court of Appeal Rules, noting that sub-rule (2) expressly excludes applications for leave from a single Judge's docket. The single Judge therefore lacked jurisdiction to determine the leave prayer; her ruling was a nullity to be set aside ex debito justitiae even if substantively correct. The court also noted that the single Judge never determined the applicant's alternative prayer for extension of time, so that prayer could not be addressed on reference. The court set aside the ruling of 7th March 2025 with no order as to costs and granted the applicant leave to file a fresh application segregating the extension-of-time prayer from the full-court leave prayers, to be placed before a bench with jurisdiction. The intended appeal's viability under section 62 remains open for determination on the fresh application.

Questions the Court framed

#

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

  1. 1.Whether the full court, on reference, should interfere with the single Judge's refusal to grant leave to appeal
  2. 2.Which court is clothed with jurisdiction to consider applications for leave to appeal under rule 55 of the Court of Appeal Rules
  3. 3.Whether the learned single Judge had jurisdiction to determine the prayer for leave to appeal
  4. 4.Whether the prayer for extension of time, not determined by the single Judge, could be addressed on reference

Key legal issues

#
01

Jurisdiction to hear applications for leave to appeal

Holding

Rule 55 of the Court of Appeal Rules expressly excludes applications for leave to appeal from matters that a single Judge may hear; the full court hears them in the first instance. The single Judge's determination of leave was therefore a nullity.

Reasoning

The court examined rule 55, which designates which applications are heard by a single Judge and which go to the full court. Sub-rule (2)(a) expressly excludes applications for leave to appeal from the single Judge's list. Although the single Judge's conclusion on the effect of section 62 of the Betting, Lotteries and Gaming Act may have been correct, she lacked jurisdiction to grant or refuse leave, and a decision without jurisdiction is void and must be set aside ex debito justitiae.

p. 3
02

Scope of reference from a single Judge's decision

Holding

On a reference, the full court may only revisit matters actually determined by the single Judge; a prayer not determined below cannot be entertained on reference.

Reasoning

The applicant had also sought extension of time, but the single Judge made no finding on that prayer, apparently treating it as moot once leave was refused. Since the reference jurisdiction is confined to reviewing the single Judge's determination, the full court could not itself decide the extension-of-time prayer. The applicant must file a fresh application separating the prayers and place them before a bench with jurisdiction.

p. 3
03

Standard for interfering with a single Judge's discretion on reference

Holding

The full bench interferes only on established grounds: irrelevant or ignored matters, misapprehension of law or evidence, or a plainly wrong decision.

Reasoning

Relying on John Koyi Waluke vs. Moses Masika Wetangula & 2 others, the court restated the classic grounds for interference with discretionary decisions on reference. In this case the court did not need to reach that standard substantively, because the antecedent defect was lack of jurisdiction in the single Judge, which vitiates the ruling regardless of its merits.

p. 3

Legal principles established

#
  • Under rule 55 of the Court of Appeal Rules, applications for leave to appeal are reserved to the full court and a single Judge has no jurisdiction to hear and determine them.
  • A decision made without requisite jurisdiction is a nullity and must be set aside ex debito justitiae, even if it could have been correct on the merits.
  • On a reference under rule 57, a full bench interferes with a single Judge's exercise of discretion only where an irrelevant matter was considered, a relevant matter ignored, the law or evidence misapprehended, or the decision was plainly wrong.

Court orders

#
  1. 1.The ruling of M. Ngugi, JA dated 7th March 2025 is set aside
  2. 2.No order as to costs
  3. 3.The applicant is at liberty to file a fresh application segregating the single Judge's prayer for extension of time and the full court prayers for leave to appeal, and have them fixed for hearing before a bench with jurisdiction

The bench

#

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

majority
majority
majority
On appeal from
Court of Appeal of Kenya (decision of a single Judge, M. Ngugi, JA)
Application dated 18th October 2024; intended appeal from Nairobi HCCA No. E191 of 2023
Jurisdiction invoked
Rule 57 of the Court of Appeal Rules (reference to the full court from a decision of a single Judge)

Relief refused

#

Determination of the prayer for extension of time to file the appeal out of time

The single Judge made no determination on extension of time, so the full court could not address it on reference

p. 3

Costs

No order as to costs (ruling of the single Judge set aside with no order as to costs)

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.

The learned single Judge did not, therefore, have jurisdiction to entertain the prayer for leave to appeal and determine the same on merit.
p. 3Single Judge's lack of jurisdiction over leave to appeal
Her ultimate decision could have been correct, but without the requisite jurisdiction, the decision arrived at was a nullity and must be set aside ex debito justitiae.
p. 3Nullity of orders made without jurisdiction
we set aside the ruling of M Ngugi, JA dated 7th March 2025 with no order as to costs. The applicant is at liberty to file a fresh application segregating the single Judge’s prayer for extension of time and the full court prayers for leave to appeal and have them fixed for hearing before a bench with jurisdiction. Orders accordingly.
p. 3Final orders - disposition
As there was no determination made by the learned Judge on extension of time, then we cannot address it here by way of reference.
p. 3Limits of reference jurisdiction

Issues in the judgment

#
minor

The judgment inconsistently renders the Board's acronym, referring to 'BCLB' in one passage and 'BLCB' in another.

minor

The judgment contains typographical errors, including 'fiaw' for 'flaw' and 'efiect' for 'effect' in reciting the applicant's contentions.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyabayo v Shop and Deliver Limited t/a Betika (Civil Application E564 of 2024) [2026] KECA 213 (KLR)", Case Analysis (2026). Reference from the ruling of M. Ngugi, JA dated 7th March 2025 (application dated 18th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/213/eng@2026-02-06

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