Peter Anyang' Nyong'o & Minister For Finance & another [2007] KECA 9 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether new evidence of post-ruling events could ground a preliminary objection to the stay application
It could not; the new evidence was irrelevant to the preliminary objection and could only be adduced on the appeal with leave.
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.
Whether the Court of Appeal can stay the Minister's decision to sell Safaricom shares under Rule 5(2)(b)
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).
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.
Whether the Court could grant interim orders in judicial review proceedings where leave was never granted
The Court expressed serious doubt that it has such jurisdiction, without making a final finding since the point was not argued.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.