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Court of AppealDismissedCivil Appli No. 318 of 2007· [2008] KECA 331 (KLR)

Northern Construction Company Limited v Attorney General & 3 others [2008] KECA 331 (KLR)

Court of Appeal
29 February 2008
SBS. E. O. BosireEOE. O. O'KubasuEGE. M. Githinji
1,491 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause corruption-related judicial review proceedings because the company had no direct legal stake in the case.

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 on an application under rule 5(2)(b) of the Court of Appeal Rules by Northern Construction Company Limited seeking a stay of all proceedings in High Court Miscellaneous Civil Application No. 800 of 2007 pending an intended appeal against the ruling of Wendoh J dated 20th November 2007. The High Court had refused to admit the applicant as a person directly affected in judicial review proceedings brought by Mohamed Koriow Nur, a director of the applicant, who had been charged with offering a bribe to a Kenya Anti-Corruption Commission investigator. The court restated the settled twin principles for relief under rule 5(2)(b): the applicant must demonstrate that the appeal is arguable and that it would be rendered nugatory absent the order, both limbs being mandatory. The court held that the applicant had no locus standi in the judicial review: it was neither a co-accused in the criminal case nor the allottee of the disputed property, which was not registered in its name; the corruption charges were personal to the 4th respondent and distinct from the alleged illegal land allocation; and the matters the applicant wished to raise concerned the merits of the land allocation rather than the decision-making process, judicial review being concerned with process and not merits. The arguability limb having failed, the court found it unnecessary to consider the nugatory limb. The application was dismissed with costs to the first, second and third respondents.

Key legal issues

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01

Whether the applicant had locus standi to be joined as a party directly affected in the judicial review application

Holding

The applicant, being neither a co-accused in the criminal case nor the allottee of the property, had no sufficient interest in the judicial review proceedings whose subject matter was the corruption charges against its director, personal to that director.

Reasoning

The court examined the affidavits and found the applicant had not been charged with any offence; the property was not registered in its name; the charges against the 4th respondent were personal to him and distinct from the alleged illegal land allocation; and the matters the applicant wished to raise were extraneous to a judicial review, which examines process rather than merits.

p. 3
02

The test for granting a stay under rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must demonstrate both that the intended appeal is arguable (not frivolous) and that the appeal would be rendered nugatory unless the order is granted; both aspects must be established.

Reasoning

The court restated the settled principles governing its original and unfettered discretion under rule 5(2)(b), citing Githunguri v Jimba Credit Corporation (No. 2) and J.K. Industries v Kenya Commercial Bank Ltd. Having found the arguability limb unsatisfied, the court found it unnecessary to consider the nugatory aspect.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must establish both that the appeal is arguable and that it would be rendered nugatory if the order is not granted; satisfying only one limb is insufficient.
  • Judicial review is concerned with the decision-making process, not with the merits of the decision under review.

Court orders

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  1. 1.Dismissal of the application for stay of proceedings under rule 5(2)(b)
  2. 2.Costs of the application to the 1st, 2nd and 3rd respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Anti Corruption and Economic Crimes Act (No. 3 of 2003)section 39(3)(b) as read with section 48(1)
  • Civil Procedure RulesOrder 53 rules 3(2), 3(4) and 6

Cases cited (2)

  • Githunguri vs. Jimba Credit Corporation (No. 2)
    [1988] KLR 838
  • J. K. Industries vs. Kenya Commercial Bank Ltd. & Another
    [1987] KLR 506
On appeal from
High Court of Kenya at Nairobi
Misc. Civil Appli No. 800 of 2007
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, "Northern Construction Company Limited v Attorney General & 3 others [2008] KECA 331 (KLR)", Case Analysis (2008). Civil Appli No. 318 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/331/eng@2008-02-29

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