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 AppealDismissedCivil Applications Nos. NAI 381, 382, 385 and 386 of 2001

Text Book Centre Limited v Kipyator Nicholas Kiprono Biwott [2001] KECA 241 (KLR)

Court of Appeal
16 November 2001
970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed all four applications by the 'Rogue Ambassador' publisher, confirming judges' hearing directions cannot be appealed.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Nairobi (Lakha, J.A.) delivered on 16 November 2001, dealing with four applications under rule 47(5) of the Court of Appeal Rules arising from a defamation suit brought by the respondent, a Member of Parliament and Minister for Trade and Industry, over the book 'Rogue Ambassador' by Smith Hempstone, sold and distributed by the applicant. The applications challenged two decisions of Kuloba, J. of the High Court given on 1 and 5 November 2001, dismissing the applicant's applications for stay of proceedings and for leave to appeal, and granting the respondent leave to amend the Chamber Summons under section 100 of the Civil Procedure Act. The court dismissed all four applications. It held that the judge's direction on the sequence of hearings was administrative, not a judicial order, so no appeal lay from it, following Omolo, J.A. in Mary Anne Njuguna. It applied Sir Charles Newbold, P.'s dictum in Aggarwal v Official Receiver that a fresh application for leave to appeal against the exercise of interlocutory discretion, where leave has already been refused, faces a very difficult task. No urgency was demonstrated on any application, and any error in the amendment could be corrected in an appeal against the final decree. All four applications were dismissed with costs to the respondent. The decision below was effectively affirmed, the interlocutory rulings of the High Court remaining undisturbed.

Questions the Court framed

#

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

  1. 1.Whether the application for stay of proceedings pending an intended appeal from the amendment of the Chamber Summons was urgent and should be granted
  2. 2.Whether an appeal lies from the judge's direction as to the sequence in which applications before him should be heard
  3. 3.Whether leave to appeal should be granted on the applications before the court
  4. 4.Whether leave to appeal against the exercise of judicial discretion on an interlocutory application should be granted

Key legal issues

#
01

Appealability of administrative directions

Holding

A judge's direction as to the sequence in which applications are to be heard is an administrative directive, not a judicial order, and no appeal lies from it; consequently neither leave to appeal nor a stay can be granted.

Reasoning

The learned judge had referred to his decisions as a 'direction and order', but the Court of Appeal held that the choice of words showed he never intended a judicial decision. Relying on Omolo, J.A. in Mary Anne Njuguna, the court held that an appeal does not lie against an administrative directive, making leave or a stay futile. The application also failed for want of urgency and absence of demonstrated prejudice.

p. 2
02

Leave to appeal against exercise of interlocutory discretion

Holding

Where leave to appeal against the exercise of a judge's discretion on a purely interlocutory application has already been refused, a fresh application for leave faces a very difficult task.

Reasoning

Applying Sir Charles Newbold, P. in Aggarwal v Official Receiver, the court noted that the subject of the intended appeal is the exercise of discretion in purely interlocutory proceedings which will not determine any matter between the parties. The court must have regard to the fact that leave has already been refused, and absent material and urgency, the application fails.

p. 2
03

Urgency certification and stay of proceedings

Holding

A stay of proceedings pending an intended appeal from an interlocutory decision amending a Chamber Summons will be refused where no urgency is shown and no miscarriage of justice is demonstrated, since any error can be corrected in an appeal against the final decree.

Reasoning

The respondent contended there was no urgency, no error in amending the Chamber Summons under section 100 of the Civil Procedure Act, and no miscarriage of justice. The court agreed that judicial discretion had been exercised and that any error could be dealt with in an appeal against the final decree, and dismissed the application with costs.

p. 2

Legal principles established

#
  • No appeal lies against an administrative directive of a judge; directions as to the sequence of hearing applications are administrative and not appealable decisions
  • An applicant seeking leave to appeal against the exercise of a judge's discretion on a purely interlocutory matter, where leave has already been refused, faces a very difficult task

Court orders

#
  1. 1.Civil Application No. NAI 381 of 2001 dismissed with costs
  2. 2.Civil Application No. NAI 382 of 2001 dismissed with costs
  3. 3.Civil Application No. NAI 385 of 2001 dismissed with costs
  4. 4.Civil Application No. NAI 386 of 2001 dismissed with costs
  5. 5.All four applications dismissed with costs

The bench

#

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

majority

Wrote the judgment

On appeal from
High Court
null
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules
Consolidated with
Civil Application No. NAI 382 of 2001, Civil Application No. NAI 385 of 2001, Civil Application No. NAI 386 of 2001

Relief refused

#

Stay of proceedings pending intended appeal (Application No. NAI 381 of 2001)

No urgency involved; any error by the learned judge can be dealt with in an appeal against the final decree

p. 2

Leave to appeal and stay in respect of the judge's directions on sequence of hearing (Application No. NAI 382 of 2001)

The directions were administrative, not judicial decisions, so no appeal lies

p. 2

Application for leave (Application No. NAI 385 of 2001)

No material before the court and no urgency demonstrated

p. 2

Application for urgency against the judge's 'direction' (Application No. NAI 386 of 2001)

No appeal lies from the direction

p. 2

Costs

All four applications dismissed 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.

For these reasons, all the four applications are dismissed with costs.
p. 3Final orders/disposition
Those directions remain no more than administrative ones, however, widely framed.
p. 2Non-appealability of administrative directions
I am satisfied that there is no urgency involved and the application should be dismissed, as I hereby do, with costs.
p. 2Stay of proceedings - urgency
In the circumstances it seems to me that the applicant faces a very difficult task.
p. 2Leave to appeal against interlocutory discretion

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Text Book Centre Limited v Kipyator Nicholas Kiprono Biwott [2001] KECA 241 (KLR)", Case Analysis (2001). Civil Applications Nos. NAI 381, 382, 385 and 386 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/241/eng@2001-11-16

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