Peter Anyang' Nyong'o & 2 others v Minister for Finance & another [2007] KECA 117 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the Safaricom IPO, ruling it can only stay a court's decisions, not government policy choices.
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 orders sought in the application and the intended appeal had been overtaken by events following the operationalization of the Privatization Act, 2005 (first ground of the preliminary objection).
- 2.Whether the Court has power under Rule 5(2)(b) to stay the Minister for Finance's 'decision' to offer 25% of Safaricom shares to the public, as distinct from an ongoing positive process or a positive order of the superior court (second ground of the preliminary objection).
- 3.Whether the Court has jurisdiction to grant interim orders under Rule 5(2)(b) relating to judicial review proceedings where leave to apply for judicial review has not been granted by the superior court (raised by the Court of its own motion; not finally determined).
Key legal issues
#Whether new evidence of changed circumstances (the Telkom Kenya share transfer agreement, the commencement of the Privatization Act by Legal Notice No. 397, and the appointment of the Privatization Commission) can ground a preliminary objection to a stay application.
No. A preliminary objection must rest on points of law; the new evidence was totally irrelevant to the preliminary objection, though potentially relevant to the appeal with leave. The first ground of the preliminary objection was misconceived and was rejected.
The Court agreed with Mr. Kigen that matters of fact cannot be raised as a preliminary objection. It stressed that it was dealing with a preliminary objection to the stay application, not with the appeal against Nyamu J's ruling. The evidence relied on by both respondents went to the appeal, where it could not be adduced without leave of the Court. Because the first ground depended wholly on affidavit evidence of post-ruling events, it was misconceived and the objection by the applicants' counsel to it was upheld.
What interim reliefs may the Court of Appeal grant under Rule 5(2)(b), and to what must those reliefs relate.
Only three species of temporary relief are available under Rule 5(2)(b) - a stay of execution, an injunction, and a stay of further proceedings - and each must relate to the decision of the superior court appealed from; the Court has no inherent interim jurisdiction.
The Court grounded its analysis on the text of Rule 5(2)(b) and the principle that the Court of Appeal, being a creature of statute, can exercise only conferred jurisdiction. Reading Western College of Arts and Applied Sciences v Oranga and its progeny, it held that the Rule authorises only a stay of execution, an injunction, or a stay of further proceedings, and that each relief must attach to the decision of the superior court appealed from. Relief directed at administrative or third-party conduct unconnected to the order below falls outside the Rule.
Whether the Court could stay the Minister for Finance's decision to acquire and offer 25% of Safaricom shares to the public.
No. The impugned decision was a Cabinet policy decision, not an order of the superior court; the order sought was extraneous to the decision under appeal and was not of the species specified in Rule 5(2)(b), so the Court had no jurisdiction to grant it.
The Court distinguished between the Minister's decision (made on Cabinet policy) and the decision under appeal, which was Nyamu J's refusal of leave and of an order that leave operate as a stay. The applicants sought none of the three Rule 5(2)(b) reliefs in relation to the decision under appeal; what they sought was the general order that the superior court could lawfully make only after granting leave to apply for judicial review. Two independent defects - extraneousness to the decision below and the wrong species of relief - defeated the Court's jurisdiction.
Whether the Court has jurisdiction to grant interim orders under Rule 5(2)(b) relating to judicial review proceedings where leave to apply for judicial review was not granted by the superior court.
Not decided. Acting on its own motion, the Court expressed serious doubt that it has such jurisdiction before an appeal against the refusal of leave succeeds, because judicial review is maintainable only with leave and the superior court itself could not have granted a stay in the absence of leave; but it declined to make a final finding without the benefit of full argument.
The Court noted that judicial review proceedings for certiorari, prohibition and mandamus exist only by virtue of section 9(1)(b) of the Law Reform Act and Order LIII rule 1(1) of the Civil Procedure Rules, and that under Order LIII rule 1(4) the power to direct that leave operate as a stay depends on leave being granted first. Since leave was refused, granting the order sought would indirectly confer what the superior court could not lawfully have granted. Acknowledging the point had not been argued, the Court suspended the question.
Legal principles established
#- Interim relief pending appeal under Rule 5(2)(b) is confined to a stay of execution, an injunction, or a stay of further proceedings, and each of the three must relate to the decision of the superior court appealed from.
- The Court of Appeal has no jurisdiction under Rule 5(2)(b) to stay an administrative or policy decision (such as a Cabinet decision) that was not made by the superior court; a general order of that kind is outside the Rule.
- The Court of Appeal is a creature of statute and can exercise only the jurisdiction conferred on it by statute.
Court orders
#- 1.The first ground of the preliminary objection (that the orders sought were overtaken by events following the operationalization of the Privatization Act, 2005) held misconceived and rejected.
- 2.The preliminary objection upheld on the second ground, the Court having no jurisdiction under Rule 5(2)(b) to grant the orders sought.
- 3.The notice of motion dated 31st October, 2007 struck out.
- 4.Costs of the application awarded to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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 (interim relief in civil proceedings pending appeal)
Relief refused
#Stay of the decision of the Minister for Finance to acquire through the Permanent Secretary to the Treasury and thereafter offer to the public 25% of Safaricom Ltd shares through an initial public offer, pending the hearing and determination of the applicants' intended appeal.
The Court had no jurisdiction under Rule 5(2)(b): the impugned decision was a Cabinet policy decision, not an order of the superior court; the order sought was extraneous to the decision appealed from and was not a stay of execution, an injunction, or a stay of further proceedings.
Costs
The notice of motion dated 31st October, 2007 was struck out 'with costs to the respondents' (both the Minister for Finance and Safaricom Ltd).
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 the foregoing reasons, we uphold the preliminary objection and accordingly strike out the notice of motion dated 31st October, 2007 with costs to the respondents.
This Court has consistently construed Rule 5 (2) (b) to the effect that each of the three types of reliefs must relate to the decision of the superior court appealed from.
It is trite law that this Court is a creature of statute and can only exercise the jurisdiction conferred on it by statute.
However, Rule 5 (2) (b) does not confer on this Court jurisdiction to grant such a general order.
we express serious doubt whether we have jurisdiction, before the appeal against refusal of leave is allowed, to grant the order sought which even the superior court has no jurisdiction to grant.
Rather, as Esther Jepkemoi Koimett discloses in the replying affidavit, it was a policy decision made by the Cabinet.
Issues in the judgment
#The same authority is cited under two different names: 'Ndungu Kinyanjui vs. Kibichoi Kugeria Services & Another' in the respondents' submission, but later referred to as 'Ndirangu Kinyanjui's (supra) case' by the applicants' counsel.
The High Court file is captioned 'H.C. MISC. A. NO. 326 OF 1998', yet the judgment records that the judicial review application for leave was filed on 25th September, 2007 and decided on 3rd October, 2007, making a 1998 file number inconsistent with the chronology stated in the body of the judgment.
The deponent of the respondents' replying affidavit is named inconsistently in the judgment as 'Esther Jepkemboi Koimett' and later as 'Esther Jepkemoi Koimett'.
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.
- Mbogoh v Chironda (Civil Application E012 of 2024) [2025] KECA 1098 (KLR)[2025] KECA 1098 (KLR)20 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Peter Anyang' Nyong'o & 2 others v Minister for Finance & another [2007] KECA 117 (KLR)", Case Analysis (2007). Civil Application No. 273 of 2007 (UR.165/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/117/eng@2007-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.