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Court of AppealDismissedCivil Application No. Nai 12 of 2007 (UR. 10/2007)· [2007] KECA 26 (KLR)

REPUBLIC v KENYA WILDLIFE SERVICE & 2 others [2007] KECA 26 (KLR)

Court of Appeal of Kenya
15 February 2007
SBS. E. O. BosireEGE. M. GithinjiPWP. N. Waki
1,746 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block two Meru park lodge leases, ruling it can only pause orders a lower court has actually made.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Bosire, Githinji and Waki JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules by Tourism Promotion Services Ltd, named as the Republic, seeking a temporary injunction and stay pending an intended appeal from Aluoch J's ruling of 28 December 2006 in Miscellaneous Civil Application No. 772 of 2006. The applicant sought to restrain Kenya Wildlife Service and Mara Landmark Limited from signing leases over the Meru Mulika Lodge and Fig Tree camp sites in Meru National Park, the subject of tender No. KWS/HQS/82/2005-2006. The Court accepted that the intended appeal - attacking the separation of the applications for leave and for stay - was arguable, consistent with the decisions in R v Commissioner of Cooperatives and Shah v Resident Magistrate Nairobi relied on by Wendoh J. The application nonetheless failed on the nugatory-eligibility and jurisdictional limbs: the relief of an 'injunctive stay' was ambiguous; an agreement for lease had already been signed on 6 December 2006; the applicant did not intend to appeal against Wendoh J's dismissal of the stay application, so the intended appeal would be ineffectual; and Aluoch J had neither granted nor refused the stay, so there was no positive and enforceable order of the superior court capable of being stayed or enjoined. The application was dismissed with costs to the two respondents and the interested party.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The first limb of the Rule 5(2)(b) test was satisfied because the point of law - the separation of the leave and stay applications - was arguable in light of the R v Commissioner of Cooperatives and Shah authorities relied on by Wendoh J.

Reasoning

The Notice of Appeal and draft memorandum of appeal challenged the learned Judge's decision to adjourn the stay limb of the ex parte application for inter partes hearing. The Court, agreeing respectfully with the two decisions of this Court relied on by Wendoh J, found that the point of law to be raised in the intended appeal was indeed arguable.

p. 3
02

Whether the appeal would be rendered nugatory and whether the Court had jurisdiction to grant the relief sought

Holding

The application failed: the relief sought was ambiguous, the lease agreement had already been signed, the applicant did not intend to appeal against Wendoh J's ruling so the appeal would be ineffectual, and the Court had no jurisdiction to stay or enjoin in respect of a non-existent order.

Reasoning

An application for stay or injunction under Rule 5(2)(b) presupposes an order of the superior court capable of being stayed or enjoined. Aluoch J neither granted nor refused the stay application; the superior court ordered no party to do or refrain from doing anything. The application for stay had already been heard and dismissed by Wendoh J, and counsel intimated no appeal lay against that ruling, so the intended appeal could not yield efficacious relief. By the time of determination the substantive judicial review motion would also have been decided, rendering the appeal ineffectual.

p. 3

Legal principles established

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  • Under Rule 5(2)(b) of the Court of Appeal Rules an applicant must satisfy the twin conditions that the intended appeal is arguable (not frivolous) and that, unless the order sought is granted, the appeal would be rendered nugatory.
  • A stay or injunction under Rule 5(2)(b) may only attach to a positive and enforceable order of the superior court; where the court below made no order compelling or restraining any party, the Court of Appeal has no jurisdiction to grant the relief sought.

Court orders

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  1. 1.The application is dismissed with costs to the two respondents and the interested party

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Wildlife (Conservation and Management) Act, Cap 376 Laws of Kenya
  • Public Procurement Regulations

Cases cited (3)

  • R vs. Commissioner of Cooperatives and another
    [1999] 1 EA 245
  • Shah & Another vs. Resident Magistrate Nairobi & Another
    [2000] 1 EA 208
  • Western College of Arts & Applied Sciences vs. Oranga & Others
    [1976] KLR 63
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Civil Application No. 772 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant stay of execution, stay of proceedings or injunction pending an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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

Cite this brief

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Cite this brief

Caselaw, "REPUBLIC v KENYA WILDLIFE SERVICE & 2 others [2007] KECA 26 (KLR)", Case Analysis (2007). Civil Application No. Nai 12 of 2007 (UR. 10/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/26/eng@2007-02-15

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