Kiama Wangai v Egerton University [2015] KECA 265 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot stay a High Court decision that simply refuses an order, because refusal creates nothing to enforce or halt.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative judicial review order can be stayed under Rule 5(2)(b)
It cannot; a negative order declining certiorari leaves nothing capable of execution or stay.
The High Court had declined to quash the invitation to the disciplinary committee. Because dismissal of a judicial review motion issues no executable order, there is nothing for the Court of Appeal to stay. The court relied on Western College of Arts and Applied Sciences v Oranga for this proposition and declined to reach the question of arguability.
Whether the court could grant conservatory orders by way of injunction restraining the disciplinary proceedings
No, because such orders are extraneous to the High Court ruling which did not deal with the disciplinary proceedings as such.
The court accepted the University's submission that an injunction of the kind sought does not emanate from the ruling under appeal, which simply responded to a certiorari application. The relief sought was therefore not properly tethered to the decision below, and the application was dismissed with costs.
Legal principles established
#- An applicant under Rule 5(2)(b) must show both an arguable appeal and that the appeal will be rendered nugatory unless stay or injunction is granted
- A negative order of the High Court is incapable of execution and therefore incapable of being stayed
Court orders
#- 1.Dismissal of the motion dated 25th June, 2015 with costs to the respondent
- On appeal from
- High Court of Kenya at Nakuru
- Judicial Review Misc. Civil Appl. No. 9 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiama Wangai v Egerton University [2015] KECA 265 (KLR)", Case Analysis (2015). Civil Application No. Nai. 176 of 2015 (UR 142/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/265/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.