Shabban Wandera v Director General Agriculture, Fisheries & Food Authority & another [2017] KEELC 2446 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of a stay on reliance upon a precedent decision
The Malindi Law Society decision, having been stayed by the Court of Appeal, could not be relied upon by the Applicant to establish the jurisdiction of the High Court
The Applicant grounded the transfer application on the Malindi decision, contending it had not been varied or set aside. The Respondents showed it had been stayed in Civil Applications Nos. 64 and 65 of 2016. The court accepted that a stayed decision is not available for use, making the Applicant's reliance wrongful.
Transfer application pending a strike-out application in the Lower Court
A party cannot evade a pending application to strike out its suit for want of jurisdiction by seeking transfer of the suit; the strike-out must first be addressed in the Lower Court
Following Equity Bank Ltd v Bruce Mutie Mutuku, the court held that where a preliminary objection or strike-out application raising jurisdiction is pending in the Lower Court, the High Court should not entertain a transfer application, since the strike-out has the potential to terminate the suit entirely.
Consolidation of an ordinary civil suit with a Judicial Review matter
An ordinary civil suit governed by the Civil Procedure Act and Rules cannot be consolidated with a Judicial Review application, which is sui generis and neither civil nor criminal
The court reasoned that Judicial Review is a sui generis jurisdiction with a different procedural approach and different applicable law from an ordinary suit. The manner of hearing the two differs, and consolidation would be like mixing water and oil — not possible.
Legal principles established
#- A decision that has been stayed cannot be relied upon by a party while the stay is in force
- Where an application to strike out a suit for want of jurisdiction is pending in the Lower Court, a party cannot circumvent it by seeking transfer of the suit to the High Court
- A Judicial Review matter is sui generis and cannot be consolidated with an ordinary civil suit, as the two have different procedural approaches and governing law
Court orders
#- 1.The Notice of Motion dated 22/11/2016 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Order 51 Rules 1, 3, 4, 8, 10(1) of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shabban Wandera v Director General Agriculture, Fisheries & Food Authority & another [2017] KEELC 2446 (KLR)", Case Analysis (2017). Busia HC (JR/ELC) — Notice of Motion dated 22/11/2016 (arising out of Busia CMCC No. 151 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2446/eng@2017-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.