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Court of AppealDismissedCivil Application No. 180 of 2013 (UR 127/2013)· [2014] KECA 865 (KLR)

Dr. Marangu Rucha & Another v Attorney General & 9 Others; St. Mary's Mission Hospital (Interested Party)

Court of Appeal
24 January 2014
KKKihara KariukiEGE.M. GithinjiWilliam OukoW. Ouko
1,585 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of a court decision that merely dismisses your case, because there is nothing to stay.

What this practically means

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Executive summary

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The applicants, administrators of St. Mary's Mission Hospital, were committed to civil jail for one month for contempt of reinstatement orders made by Mukunya J. in Industrial Court Cause No. 538 of 2011. They petitioned the Industrial Court (Petition No. 337 of 2012) seeking declarations that the committal was unconstitutional and that the Industrial Court lacked jurisdiction to punish contempt, plus certiorari, mandamus and prohibition. Nduma J. dismissed the petition on 8 July 2013, holding that the Industrial Court had jurisdiction under Section 5 of the Judicature Act and that certiorari and mandamus were unavailable in a constitutional petition. The applicants lodged a notice of appeal and moved the Court of Appeal under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules for a stay of Nduma J's decision pending the intended appeal. The court, per Kihara Kariuki P, Githinji and Ouko JJ.A, dismissed the motion. It held that a dismissal is not a positive order capable of being stayed, following F & S Scientific Ltd v Kenya Revenue Authority and Republic v Kenya Wildlife Services. The committal order of 31 July 2012 was a distinct earlier order against which the applicants had abandoned an appeal. Although the intended appeal raised arguable questions, including the Industrial Court's contempt jurisdiction, the court found the appeal would not be rendered nugatory. The application was dismissed with costs in the intended appeal.

Key legal issues

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01

Whether a dismissal of a constitutional petition is capable of being stayed

Holding

No - a dismissal is not a positive order directing any party to do or refrain from doing anything, so no stay lies under Rule 5(2)(b)

Reasoning

The court adopted its earlier reasoning in F & S Scientific Ltd v Kenya Revenue Authority and Republic v Kenya Wildlife Services: where the superior court has not ordered any party to do or refrain from doing anything, there is no positive and enforceable order capable of being stayed or enjoined. Nduma J's dismissal of the petition merely left the earlier committal order of 31 July 2012 intact; that earlier order was distinct and the applicants had abandoned an appeal against it.

p. 3
02

Which decision the stay application properly targeted

Holding

The application could only target the decision of Nduma J. of 8 July 2013, being the decision against which the notice of appeal was lodged; the reference to Makau J's ruling of 31 July 2012 was irrelevant

Reasoning

The notice of appeal expressed dissatisfaction with the whole ruling of Nduma J. of 8 July 2013. The committal order of 31 July 2012 was an earlier distinct order against which the applicants had filed a notice of appeal on 27 August 2012 but which they appeared to have abandoned. Referencing the 2012 order only created the appearance of a positive order capable of being stayed.

p. 3

Legal principles established

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  • A stay of execution or implementation cannot be granted where the order sought to be stayed is a dismissal containing no positive order directing a party to do or refrain from doing anything
  • Rule 5(2)(b) stay relief applies only to positive and enforceable orders

Court orders

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  1. 1.The application for stay pending the intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondents, costs to be in the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 75
  • Judicature ActSection 5

Cases cited (2)

  • F & S Scientific Ltd v Kenya Revenue Authority & Another
    Civil Application No. 260 of 2012

    Stay of execution or implementation cannot be granted where the action has been dismissed; no positive order exists

  • Republic v Kenya Wildlife Services & 2 others
    Civil Application No. Nai. 12 of 2007

    No positive and enforceable order exists where the superior court ordered no party to do or refrain from doing anything

On appeal from
Industrial Court of Kenya at Nairobi
Industrial Court Petition No. 20 of 2012
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b) and 42 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, "Dr. Marangu Rucha & Another v Attorney General & 9 Others; St. Mary's Mission Hospital (Interested Party)", Case Analysis (2014). Civil Application No. 180 of 2013 (UR 127/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/865/eng@2014-01-24

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