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Court of AppealStruck OutCivil Appli. Nai 273 of 2007 (Ur. 165/2007)· [2007] KECA 9 (KLR)

Peter Anyang' Nyong'o & Minister For Finance & another [2007] KECA 9 (KLR)

Court of Appeal of Kenya
20 December 2007
3,947 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to halt the 2007 Safaricom share sale, ruling it can only stay decisions made by the High Court, not government policy decisions.

What this practically means

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Executive summary

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The three applicants, members of Parliament, sought leave in the High Court to apply for judicial review orders of certiorari, mandamus and prohibition against the Minister for Finance's decision to acquire through the Permanent Secretary to the Treasury and offer to the public 25% of Safaricom shares through an initial public offer, contending the sale should await commencement of the Privatization Act 2005. Nyamu J on 3rd October 2007 refused leave, holding no arguable points were established, and declined to let any leave operate as a stay, citing inordinate delay and third-party interests. The applicants filed a notice of appeal and then a notice of motion under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of the Minister's decision pending appeal. Safaricom raised a preliminary objection. The Court of Appeal (O'Kubasu, Githinji and Onyango Otieno JJA) rejected the first ground of the objection (new evidence of changed circumstances, including the transfer agreement with Telkom Kenya and the operationalisation of the Privatization Act), holding such matters of fact could not ground a preliminary objection. However, the Court upheld the second ground: under Rule 5(2)(b) the Court may grant only a stay of execution, an injunction or a stay of proceedings, each of which must relate to the decision of the superior court appealed from. The Minister's decision was a Cabinet policy decision, not an order of the High Court, and the relief sought was not of the species specified. The Court also expressed serious doubt whether it could grant interim orders in judicial review matters where leave had been refused. The motion was struck out with costs to the respondents.

Key legal issues

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01

Whether new evidence of post-ruling events could ground a preliminary objection to the stay application

Holding

It could not; the new evidence was irrelevant to the preliminary objection and could only be adduced on the appeal with leave.

Reasoning

The Court was dealing only with a preliminary objection to the stay application, not the appeal itself. Matters of fact such as the transfer of shares cannot be raised as a preliminary objection. The new evidence might be relevant to the appeal, but additional evidence would require leave of the Court.

p. 4
02

Whether the Court of Appeal can stay the Minister's decision to sell Safaricom shares under Rule 5(2)(b)

Holding

No. The decision sought to be stayed was not made by the superior court and the relief sought is not of the species in Rule 5(2)(b).

Reasoning

The Minister's decision was a policy decision made by the Cabinet, not an order of Nyamu J. The subject matter of the intended appeal was the ruling refusing leave to apply for judicial review and refusing a stay. The applicants sought none of the three reliefs specified in Rule 5(2)(b) in relation to the superior court's decision, and Rule 5(2)(b) does not confer power to grant the general order sought.

p. 6
03

Whether the Court could grant interim orders in judicial review proceedings where leave was never granted

Holding

The Court expressed serious doubt that it has such jurisdiction, without making a final finding since the point was not argued.

Reasoning

Judicial review proceedings require leave under section 9(1)(b) of the Law Reform Act and Order LIII rule 1(1) CPR, and the superior court's power to order a stay of proceedings under Order LIII rule 1(4) depends on leave first being granted. Since leave was refused, the applicants were indirectly asking the Court of Appeal to grant an order the superior court could not lawfully have granted. The Court declined to make a final finding unargued.

p. 7

Legal principles established

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  • Under Rule 5(2)(b), each of the three interim reliefs the Court of Appeal may grant must relate to the decision of the superior court appealed from; the Court cannot stay a decision made by an executive organ that was not the subject of the order below.
  • Rule 5(2)(b) confers only three species of interim relief: stay of execution, injunction and stay of further proceedings, all tied to the superior court's decision.
  • Where the superior court has not ordered any party to do anything, refrain from anything, or pay any sum, there is nothing arising from that decision for the Court of Appeal to enforce or restrain by injunction.

Court orders

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  1. 1.The notice of motion dated 31st October, 2007 is struck out with costs to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. A. No. 326 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Anyang' Nyong'o & Minister For Finance & another [2007] KECA 9 (KLR)", Case Analysis (2007). Civil Appli. Nai 273 of 2007 (Ur. 165/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/9/eng@2007-12-20

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