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ELCDismissedJudicial Review Application (Notice of Motion dated 20th November 2023)· [2024] KEELC 7338 (KLR)

Republic v County Government of Homa Bay & another; Liech (Exparte) (Environment and Land Judicial Review Case E003 of 2023) [2024] KEELC 7338 (KLR)

Environment and Land Court
6 November 2024
GOG.M.A Ongondo
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Filing an appeal in Kenya does not pause a case or execution — you must separately ask the right court for a stay, and here the High Court-type ELC said it no longer had power.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (G.M.A Ongondo, J) determined a Notice of Motion dated 20th November 2023 by the respondents, brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, various provisions of the Civil Procedure Rules, 2010 and Article 50 of the Constitution. They sought a stay of the Judicial Review proceedings pending determination of Kisumu Civil Appeal No. E046 of 2023, a second appeal against the court's judgment of 7th December 2022 which had partially allowed their first appeal from the Chief Magistrate's decision in Homabay ELC No. 18 of 2018. The ex parte applicant opposed through grounds of opposition and submissions, arguing that the Judicial Review application was not a fresh suit but a mode of execution under Section 21(5) of the Government Proceedings Act, that the court was functus officio, and that the proper forum for stay was the Court of Appeal, where the second appeal was pending. Framing two issues (merit of the application and orders to meet the ends of justice), the court held that a second appeal does not operate as an automatic stay, and that having rendered final judgment it lacked jurisdiction to grant further orders, applying the functus officio doctrine from Telkom Kenya Ltd v John Ochanda and the jurisdictional principle in Republic v Karisa Chengo. The application was struck out with no order as to costs.

Key legal issues

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01

Whether the court could stay its own Judicial Review proceedings pending a second appeal in the Court of Appeal

Holding

The court declined, holding it is functus officio and lacks jurisdiction; the proper forum is the Court of Appeal.

Reasoning

The court noted that the Judicial Review application was not a fresh suit but a mode of execution of the decree under Section 21(5) of the Government Proceedings Act. Having rendered final judgment on the first appeal on 7th December 2022, the court is functus officio. A second appeal does not operate as an automatic stay, and orders for stay should be sought from the court seized of the appeal. Lack of jurisdiction renders any such order void.

p. 4

Legal principles established

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  • An appeal or second appeal does not operate as an automatic stay of execution or proceedings under a decree or order appealed from
  • Functus officio prevents a court that has rendered final judgment from re-opening the matter or granting further orders
  • A decision rendered without jurisdiction is void, not merely voidable

Court orders

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  1. 1.The Notice of Motion dated 20th November 2023 is struck out
  2. 2.No order as to costs
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21) and Order 22 Rules 51 and 52, Order 42 Rule 6, Order 43 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 50 of the Constitution

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 County Government of Homa Bay & another; Liech (Exparte) (Environment and Land Judicial Review Case E003 of 2023) [2024] KEELC 7338 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 20th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7338/eng@2024-11-06

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