Governors Balloon Safaris Limited v The Attorney General, Skyship Company Limited & The County Government of Narok
The bottom line
#Kenya's Court of Appeal refused to pause a struck-out petition, confirming you cannot stay a 'negative order' or freeze execution from a different case.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order striking out a petition can be stayed
No. An order striking out a petition is a negative order incapable of execution save in respect of costs, so there is nothing to stay.
The Court applied Kanwal Sarjit Singh Dhiman v Keshavji Shah and Western College of Arts & Applied Sciences v Oranga, holding that where the superior court has not ordered any party to do or refrain from doing anything or to pay any sum, the order is negative and cannot be the subject of a stay or injunction.
Whether the Court of Appeal has jurisdiction under Rule 5(2)(b) to stay execution of warrants issued in different proceedings
No. The stay can only relate to the subject matter of the notice of appeal; warrants from HCCC No. 461 of 2008 did not arise from the petition intended to be appealed.
The Court held that the lodging of a notice of appeal gives jurisdiction under Rule 5(2)(b), but the stay must relate to the decision to be appealed. Execution questions relating to a decree in another suit fall to be determined by the court executing the decree under section 34(1) of the Civil Procedure Act, not by a separate suit or a different court.
Whether the intended appeal was arguable
No. The petition was based on the same grounds as an application already pending in HCCC No. 461 of 2008, making the petition an abuse of process, and the appeal was not arguable.
The applicant had obtained a favourable conditional stay in HCCC No. 461 of 2008 but, displeased with the deposit condition, filed a constitutional petition on the very same grounds before that application was heard inter partes. The Court held the validity of the warrants was already the subject of a pending application, so instituting a parallel petition was an abuse of process and the judge was right to strike it out.
Whether constitutional issues can only be raised through a separate constitutional petition under the Mutunga Rules
No. Every High Court judge has jurisdiction under the Constitution to hear and determine constitutional issues arising in any action before them.
Rule 10(2)(e) of the Mutunga Rules, requiring a petitioner to indicate the suit in which a constitutional issue arises, cannot be read to oust the High Court's jurisdiction to determine constitutional issues within pending proceedings. The High Court's jurisdiction under the Constitution empowers it to hear constitutional issues in any suit.
Legal principles established
#- A negative order, such as an order striking out a petition, is incapable of being stayed or executed save in respect of costs
- Under Rule 5(2)(b), a stay can only relate to the subject matter of the notice of appeal, being the decision to be appealed against
- Questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit
- Every High Court judge has jurisdiction to determine constitutional issues arising in any matter before them; a party need not file a separate constitutional petition
- Instituting a separate suit over a matter already pending determination in another suit is an abuse of the process of the court
Court orders
#- 1.The application under Rule 5(2)(b) is dismissed with costs to the 2nd and 3rd respondents
- On appeal from
- High Court of Kenya, Milimani Law Courts, Constitutional & Human Rights Division, Nairobi
- High Court Petition No. 428 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (Rules of the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Governors Balloon Safaris Limited v The Attorney General, Skyship Company Limited & The County Government of Narok", Case Analysis (2015). Civil Application No. NAI 236 of 2014 (UR 184/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/961/eng@2015-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.