Evans Kaleka Sogomi v District Land Registrar & 6 others [2017] KEELC 485 (KLR)
The bottom line
#Kenya's High Court confirmed it can grant stay of execution in judicial review cases using its inherent powers, even though civil procedure rules don't apply.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay of execution pending appeal in judicial review matters
Order 42 Rule 6 and the cited provisions of the Civil Procedure Act do not apply to judicial review; stay can nonetheless be granted under the court's inherent power to do justice.
The court held judicial review proceedings are special, neither criminal nor civil, so sections 1A, 1B, 3, 3A, 63(c) and 95 of the Civil Procedure Act and Orders 42 Rule 6-7 and 50 Rule 1 do not apply, citing Commissioner of Lands v Kunste Hotel Ltd. However, following Nakumatt Holdings Ltd v Commissioner of VAT, the superior court has residual and inherent jurisdiction to correct mistakes and do justice where the law is silent. Having found the applicant unjustly deprived of proceedings needed to file an appeal, the court exercised that inherent power.
Whether the applicant's delay was excusable
Though there was inordinate delay, it was satisfactorily explained because the applicant never received the typed and certified proceedings.
The respondent asserted the proceedings were ready and certified as at 4.10.2016 and that the applicant was guilty of inordinate delay. On perusal of the record the court found the proceedings were ready on 4.10.2016 but were never forwarded to the applicant, while counsel for the respondent obtained a copy without applying for or paying for it. Since the applicant had requested and paid for the proceedings promptly and been denied them, the delay was explained satisfactorily.
Legal principles established
#- Judicial review proceedings are special proceedings, neither criminal nor civil, to which the Civil Procedure Act and Civil Procedure Rules do not apply.
- The High Court possesses inherent jurisdiction, not created by any law, to correct mistakes and do justice where the law is silent.
Court orders
#- 1.A further stay of execution of the decree of 90 days pending the filing and serving of a record of appeal
- Jurisdiction invoked
- Inherent power of the High Court to do justice; the court held Order 42 Rule 6 CPR and sections 1A, 1B, 3, 3A, 63(c) and 95 of the Civil Procedure Act do not apply to judicial review
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Kaleka Sogomi v District Land Registrar & 6 others [2017] KEELC 485 (KLR)", Case Analysis (2017). Judicial Review No. 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/485/eng@2017-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.