Republic v Cabinet Secretary Ministry of Lands and Physical Planning; Lucas Oloo Owiti (Interested Party) [2021] KEELC 3446 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there is anything capable of being stayed in the order of 22 May 2020
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
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.
Whether the Court has power to stay an order of certiorari
No; by its nature certiorari is not capable of execution and can only be reversed on appeal
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.
Legal principles established
#- 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
#- 1.The application dated 21/09/20 seeking stay of execution pending appeal is dismissed
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.