Ochieng v Awanad Enterprises Limited & 2 others (Civil Appeal (Application) E054 of 2021) [2026] KECA 1022 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a shortcut attempt to reach the Supreme Court, confirming you must finish earlier appeal steps first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application seeking certification that the intended appeal raises matters of constitutional interpretation and matters of general public importance under Article 163(4)(b) of the Constitution is merited
Key legal issues
#Whether certification to appeal to the Supreme Court under Article 163(4)(b) can be granted where the impugned decision is a single-judge ruling on an extension-of-time application and no Reference under Rule 57 has been filed
The application cannot be certified; it is premature and a non-starter because a single judge's ruling is not a substantive decision of the Court and the applicant had an available remedy by way of Reference under Rule 57.
The court held that a party must exhaust available procedures before seeking redress elsewhere. An aggrieved party to a single judge's decision must file a Reference to a full bench under Rule 57. Because the decision sought to be appealed is a single-judge ruling, no substantive decision of the Court exists upon which the court could assess whether matters of general public importance transcend the parties. Depending on the Reference outcome, a party may then seek certification under Article 163(3).
Whether issues such as res judicata in employment matters not considered by the single judge can be certified for the Supreme Court
No - issues that were not considered by the single judge, such as res judicata, cannot bypass the Court of Appeal and proceed directly to the Supreme Court.
The applicant wished to raise the interpretation and application of res judicata in employment matters before the Supreme Court. The court noted this was not an issue considered by Gatembu, JA, and such an issue cannot bypass the Court of Appeal; consequently the court was bereft of power to address its suitability to ascend to the apex court.
Legal principles established
#- A party aggrieved by the decision of a single judge of the Court of Appeal must exhaust the laid-down procedure by filing a Reference to a full bench under Rule 57 before seeking certification to appeal to the Supreme Court.
- A matter meriting certification as one of general public importance requires a substantial point of law, the determination of which has a bearing on the public interest and which was raised in the courts below.
- Where there is no substantive decision of the Court of Appeal, there can be no certification of a matter of general public importance for appeal to the Supreme Court; only after a substantive decision may the applicant seek certification under Article 163(3).
Court orders
#- 1.The Notice of Motion dated 16th May 2025 is struck out with costs to the 3rd respondent only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of a single judge, Gatembu, JA)
- Ruling dated 9th May 2025 in an application for extension of time arising from Civil Appeal No. E054 of 2021
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification of appeal to the Supreme Court as a matter of general public importance)
Relief refused
#Certification that the intended appeal raises matters of constitutional interpretation and application and matters of general public importance under Article 163(4)(b)
The decision sought to be appealed is a ruling of a single judge on extension of time; no substantive decision of the Court of Appeal exists, and the applicant had not first filed a Reference under Rule 57, making the application premature and a non-starter
Costs in the cause
Costs were awarded to the 3rd respondent only, as the only party who opposed the application
Costs
The application was struck out with costs to the 3rd respondent only, since he is the party who opposed the application.
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.
It is now well settled law that a party should exhaust the available and well laid down procedure(s) as provided in the Constitution, statutes and applicable Rules of procedure before seeking redress elsewhere.
there is no substantive decision arising from this Court as to enable us determine whether it raises matters of general public importance that transcend the parties herein in order to be heard by the Supreme Court
In a nutshell, the instant application is premature and a non-starter.
In the end, we find and hold that the Notice of Motion dated 16th May 2025 is devoid of merit and is hereby struck out with costs to the 3rd respondent only since he is the party who opposed the application.
Issues in the judgment
#The judgment describes Omar t/s Sabrin Shop as a 'Supreme Court decision' but its citation is a High Court citation ([2024] KEHC 6177 (KLR)), an internal inconsistency in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Awanad Enterprises Limited & 2 others (Civil Appeal (Application) E054 of 2021) [2026] KECA 1022 (KLR)", Case Analysis (2026). Civil Application (Notice of Motion dated 16th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1022/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.