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Court of AppealStruck OutCivil Application No. 308 of 2008

Republic & 4 others v Water Appeals Board & 3 others [2010] KECA 434 (KLR)

Court of Appeal
12 February 2010
SBS.E.O. BosireEGE.M. GithinjiJNJ.G. Nyamu
890 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can only appeal to stay a positive, enforceable court order — not a refusal.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nairobi in which the applicants sought leave to amend a notice of motion and to file a supplementary affidavit in support of an application for stay of execution of a ruling of the High Court at Embu (Karanja, J) dated 20th November 2008. The underlying dispute arose from an ex-parte application for leave to seek certiorari, in which Kasango, J granted leave on 13th August 2008 but declined to order that the leave operate as a stay. Instead of filing the substantive judicial review motion, the applicants sought review of that refusal, relying on an alleged new matter: a letter dated 21st August 2008 from Tana Water Services Board threatening disconnection of water supply to over 1,000 households and other consumers. Karanja, J dismissed the review application. The Court of Appeal held that the ruling sought to be stayed was not a positive order capable of execution and therefore fell outside rule 5(2)(b) of the Court Rules. Further, the threatened disconnection decision was made by Tana Water Services Board, which was neither a party to the application nor to the judicial review proceedings, so that decision prima facie fell outside the Court's jurisdiction under section 3 of the Appellate Jurisdiction Act. The application was struck out with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction under rule 5(2)(b) to stay a decision that is not a positive order capable of execution
  2. 2.Whether a decision made by Tana Water Services Board, a non-party, is capable of being stayed by the Court

Key legal issues

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01

Whether the application for stay fell within rule 5(2)(b) of the Court of Appeal Rules

Holding

It did not, because the decision sought to be stayed (the refusal to order that leave operate as stay) was not a positive order capable of execution.

Reasoning

The court traced the genesis of the matter: leave to apply for certiorari was granted but without an order that leave operate as stay. Instead of filing the substantive motion, the applicants sought review of that refusal, which Karanja, J dismissed. The application before the Court of Appeal sought to stay that dismissal. The court reasoned that a refusal to grant a stay is a negative decision incapable of execution, so a stay of execution of it is conceptually and jurisdictionally impossible under rule 5(2)(b).

p. 2
02

Whether the Court could stay the threatened disconnection by Tana Water Services Board

Holding

No. The disconnection decision was made by Tana Water Services Board, which was neither a party to the application before the Court nor to the judicial review proceedings, so the decision prima facie fell outside the Court's jurisdiction.

Reasoning

The letter of 21st August 2008 threatening disconnection was written on the notepaper of Tana Water Services Board, an entity not a respondent before the Court and not a party to the judicial review proceedings in the superior court. The court held that a stay of a decision of a non-party statutory body could not be granted, as the Court's jurisdiction under section 3 of the Appellate Jurisdiction Act is limited to appeals from the High Court.

p. 2

Legal principles established

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  • Rule 5(2)(b) jurisdiction to stay execution exists only where there is a positive order of the superior court capable of being executed; a refusal to order that leave operate as stay is not such an order.
  • The Court of Appeal's jurisdiction is confined to appeals from the High Court in cases in which an appeal lies under any law; it cannot stay a decision made by an entity that was not a party to the proceedings before the High Court.

Court orders

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  1. 1.The application is struck out with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Embu
H.C. Misc. App. No. 43 of 2008
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya; rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court ruling of 20th November 2008 (and leave to amend the notice of motion and file a supplementary affidavit)

The ruling sought to be stayed was not a positive order capable of execution, and the decision the applicants wished to stay was made by Tana Water Services Board, not the High Court, and falls outside the Court's jurisdiction

p. 2

Costs

The application is incompetent and the same is struck out with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The decision of the superior court declining to order that the leave granted operates as stay, is itself not capable of being executed since it is not a positive order and consequently the application falls outside the ambit of rule 5(2)(b) of the Court Rules.
p. 2Rule 5(2)(b) stay jurisdiction - only positive orders capable of execution can be stayed
In addition it is clear to us that the decision the applicants want us to stay was made by the Tana Water Services Board and not the High Court. That decision prima facie, falls outside the jurisdiction of this Court.
p. 2Jurisdiction confined to decisions of the High Court, not decisions of non-parties
The application is incompetent and the same is struck out with costs to the respondent.
p. 2Final order - striking out

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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 & 4 others v Water Appeals Board & 3 others [2010] KECA 434 (KLR)", Case Analysis (2010). Civil Application No. 308 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/434/eng@2010-02-12

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