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ELRCDismissedMotion dated 27th November 2019 (Judicial Review application, decision delivered 26th November 2019)· [2020] KEELRC 1237 (KLR)

Boniface Murugi Ndai v County Assembly of Laikipia & 3 others [2020] KEELRC 1237 (KLR)

High Court of Kenya
24 April 2020
NMNzioki wa Makau
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled you cannot stay a dismissed judicial review case because there is nothing to stay when the court refuses to grant any orders.

What this practically means

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Executive summary

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The Applicant, the removed County Executive Committee Member for Finance in the Laikipia County Government, moved the court by notice of motion dated 27th November 2019 seeking a stay of the judgment and decree of the court delivered on 26th November 2019 in a judicial review application, pending an intended appeal, and that he remain in office in the interim. The Respondents opposed, contending that there was no order or decree capable of being stayed since the court's decision was a negative order dismissing the Applicant's motion, and that the Applicant had failed to meet the Order 42 Rule 6 conditions of substantial loss, absence of unreasonable delay and security. The Applicant argued, relying on several authorities, that the application was filed without unreasonable delay and that his removal would cause the county irreparable harm, including halting IFMIS payments, pending bills and the budget process. The court framed the issues around delay, loss, security and whether any order existed capable of being stayed. It held that judicial review proceedings are sui generis and that a decision declining certiorari, mandamus or prohibition is a negative order incapable of stay or execution, as the court had ordered no party to do or refrain from doing anything. The motion was accordingly dismissed with costs to the Respondents, though execution of the judgment was automatically stayed for 14 days under the COVID-19 practice directions, the decision being delivered online.

Key legal issues

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01

Whether there exists an order or decree capable of being stayed following dismissal of a judicial review application

Holding

No order capable of being stayed exists; the decision was a negative order with no directive to any party

Reasoning

The court reasoned that judicial review proceedings are sui generis. Because the court declined to issue the prerogative orders of certiorari, mandamus or prohibition, the resulting order was negative - it neither ordered nor directed anyone to do or refrain from doing anything. Stay of execution presupposes a positive order capable of being delayed in performance; absent such an order, there is nothing to stay and the motion is devoid of merit.

p. 3

Legal principles established

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  • A negative order declining judicial review relief (certiorari, mandamus or prohibition) is incapable of being stayed or executed

Court orders

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  1. 1.The motion dated 27th November 2019 and filed on 28th November 2019 is dismissed with costs to the Respondents
  2. 2.Execution of the judgment is automatically stayed for 14 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1 and 3 (waived)
  • Chief Justice's Practice Directions to Mitigate COVID-19 dated 16th March 2020
  • Kenya Gazette Notice 2357 of 20th March 2020 (Vol. CXXII No. 50)

Cases cited (9)

  • Trattoria Ltd v Joamimah Wanjiku Maina
    NBI Misc. Appl. No. 431/2013
  • Utalii Transport Company Ltd & 3 Others v NIC Bank & Another
    [2014] eKLR
  • Gahir Engineering Works Ltd v Rapid Kate Services & Another
    [2015] eKLR
  • Apar Industries Limited v Joe's Freighters Limited
    [2015] eKLR
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Nairobikiru Line Services Limited v Sub-County of Othaya & 2 others
    [2017] eKLR
  • G. N. Muema P/A (sic) Mt. View Maternity & Nursing Home v Miriam Maalim Bishar & Another
    [2018] eKLR
  • Richard Muthusi v Patrick Gituma Ngomo & Another
    [2017] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal), invoked before the court that rendered the decision

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, "Boniface Murugi Ndai v County Assembly of Laikipia & 3 others [2020] KEELRC 1237 (KLR)", Case Analysis (2020). Motion dated 27th November 2019 (Judicial Review application, decision delivered 26th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1237/eng@2020-04-24

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