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ELCDismissedNot stated in the judgment· [2021] KEELC 3446 (KLR)

Republic v Cabinet Secretary Ministry of Lands and Physical Planning; Lucas Oloo Owiti (Interested Party) [2021] KEELC 3446 (KLR)

Environment and Land Court
3 May 2021
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot stay a dismissal order or a certiorari order pending appeal — if you lose a judicial review case, your remedy is the appeal itself.

What this practically means

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Executive summary

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The applicant filed a notice of motion dated 21 September 2020 under Order 42 Rule 6(1) and Order 51 Rules 1 and 3 of the Civil Procedure Rules seeking stay of execution and/or enforcement of an order of the Environment and Land Court delivered on 22 May 2020, which had dismissed the applicant's judicial review application (brought under Order 53 Rule 3 seeking certiorari to quash the minister's decision of 28 March 2017 awarding parcel Kisumu/Nyamware/3411 to Alfred Nyateng Muga or his successors). The application was supported by the affidavit of the applicant's advocate, Moses Munuang'o, who deponed that surveyors were set to visit the ground on 30 September 2020 and that the interested party risked losing his only parcel of land. The application was unopposed; counsel for the respondent indicated on 26 January 2021 that the application was not opposed. Before reaching the Order 42 conditions, the court framed two anterior issues: whether the court has power to stay an order of certiorari, and whether there was anything to be stayed in the 22 May 2020 order. The court held that the dismissal order was couched in negative terms, incapable of being stayed, and that costs had not been ascertained. Further, the general jurisprudence is that orders of certiorari cannot be stayed pending appeal as they are not capable of execution and can only be reversed on appeal; consequently the Environment and Land Court lacks authority to stay judicial review orders. The application was dismissed with no orders as to costs, the respondents having filed no responses. Judgment was delivered electronically on 3 May 2021 due to COVID-19 restrictions.

Key legal issues

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01

Whether there is anything capable of being stayed in the order of 22 May 2020

Holding

There is nothing to be stayed; the order merely dismissed the judicial review application with costs and commanded no party to do or refrain from doing anything

Reasoning

The order of 22 May 2020 dismissed the applicant's judicial review application with costs. A dismissal order is negative in character; execution could only lie in respect of costs, which had not yet been ascertained. The surveyor visit apprehended by the applicant would be in execution of the minister's decision of 28 March 2017, not the court's dismissal order. Accordingly no stay could issue.

p. 2
02

Whether the Court has power to stay an order of certiorari

Holding

No; by its nature certiorari is not capable of execution and can only be reversed on appeal

Reasoning

Relying on Court of Appeal and High Court authority, the court held that judicial review remedies under section 8 of the Law Reform Act are public law remedies confined to mandamus, prohibition and certiorari. Certiorari, once granted, is final and takes effect immediately; an interlocutory stay would amount to reversing the superior court's decision without an appeal. The ELC therefore lacks authority to stay such orders.

p. 2

Legal principles established

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  • A dismissal order with costs is a negative order containing nothing capable of execution and cannot be stayed pending appeal
  • Courts have no power to stay orders of certiorari, which are not capable of execution and can only be reversed upon hearing of an appeal
  • The Environment and Land Court lacks authority to stay judicial review orders

Court orders

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  1. 1.The application dated 21/09/20 seeking stay of execution pending appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 Rules 1 and 3
  • Civil Procedure RulesOrder 53 Rule 3
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Law Reform ActSections 8(1), (2), (3), (4) and (5)

Cases cited (10)

  • Catherine Njeri Maranga v Serah Chege & another
    [2017] eKLR
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah
    [2008] eKLR
  • Fulchand M. Shah v Panachand J Shah & 6 others
    [2010] eKLR
  • Republic v Public Procurement Administrative Review Board & 3 others Ex-parte Kenya Electricity Generating Company Ltd
    [2010] eKLR
  • Kuria Mbae v The Land Adjudication Officer, Chuka
    High Court Miscellaneous Application No. 257 of 1987 (unreported)
  • Republic v Municipal Council of Mombasa & 2 Others, Exparte Adopt-A-Light Ltd
    Civil Application No. Nai. 15 of 2007 (unreported)
  • Cortec Mining Kenya Limited v Cabinet Secretary, Attorney General & 8 others
    [2015] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) and Order 51 Rules 1 and 3 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Republic v Cabinet Secretary Ministry of Lands and Physical Planning; Lucas Oloo Owiti (Interested Party) [2021] KEELC 3446 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3446/eng@2021-05-03

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