Moi Teaching and Referral Hospital & another v Gikenyi B & 76 others
The bottom line
#Supreme Court cannot halt High Court proceedings; it only handles appeals from Court of Appeal.
What this practically means
#Seventy-six people tried to stop a High Court case about hiring bosses for state-owned companies. They lost at the Court of Appeal and wanted the Supreme Court to pause the High Court case while they appealed. The Supreme Court refused. It explained that its power to stop cases only applies to the Court of Appeal, not the High Court. Also, the Court of Appeal had simply dismissed their case, so there was no order to pause. The application was thrown out, and they must pay the other side's legal costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal
- 2.Whether the appeal would be rendered nugatory if the stay is not granted
- 3.Whether it is in the public interest to grant the stay
Key legal issues
#Whether the Supreme Court has jurisdiction to stay proceedings before the High Court pending an appeal from a Court of Appeal decision.
The Supreme Court lacks jurisdiction to stay proceedings before the High Court; its jurisdiction to grant stays is limited to proceedings and orders of the Court of Appeal.
The Court reasoned that under Article 163(4)(b) of the Constitution, only decisions of the Court of Appeal can be challenged before the Supreme Court. Consequently, the ancillary power to grant stays under Sections 21(2) and 23A of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020, extends only to proceedings and orders of the Court of Appeal. The Court cannot leapfrog the Court of Appeal to stay proceedings in the High Court, as the High Court is not a party to the appeal before the Supreme Court.
Whether the Court of Appeal's dismissal of the appeal constitutes a positive order that can be stayed.
A dismissal of an appeal is a negative order that cannot be stayed, as there is no positive action to suspend.
The Court noted that the Court of Appeal dismissed the appeal, which is a negative order. It held that the applicants were inviting the Court to ignore the Court of Appeal's decision and stop proceedings in a matter not before it. The Court declined this invitation, emphasizing that even for Court of Appeal decisions, its jurisdiction is limited.
Legal principles established
#- Supreme Court cannot stay High Court proceedings; only Court of Appeal orders can be stayed.
- Only decisions of the Court of Appeal can be appealed to the Supreme Court under Article 163(4)(b).
- A dismissal of an appeal is a negative order that cannot be stayed.
- Supreme Court's ancillary power to grant stays extends only to Court of Appeal proceedings.
- The Court cannot bypass the Court of Appeal to stop High Court cases.
Court orders
#- 1.The Notice of Motion dated 11th June 2025 and filed on 23rd June 2025 is hereby dismissed.
- 2.The applicants shall bear the costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Sections 21(2) and 23A of the Supreme Court Act; Rules 3, 31, and 32 of the Supreme Court Rules, 2020
Relief refused
#Stay of all further proceedings in Nakuru High Court Petition No. E011 of 2024 pending the hearing and determination of the application and appeal
The Court found it lacked jurisdiction to stay proceedings before the High Court, as only proceedings of the Court of Appeal can be stayed under the relevant provisions. The Court also noted the Court of Appeal made no positive order to stay.
Costs
The applicants shall bear the costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
By Article 163(4)(b) of the Constitution, only decisions of the Court of Appeal can be challenged before this Court, and by necessary and logical reasoning only proceedings and ancillary or interlocutory orders issued by the Court of Appeal can be stayed under Sections 21(2) and 23A of the Supreme Court Act as well as Rule 3(5) of the Supreme Court Rules 2020.
This Court cannot leapfrog the Court of Appeal to stay proceedings before the High Court.
The Notice of Motion dated 11th June 2025 and filed on 23rd June 2025 is hereby dismissed.
The applicants shall bear the costs of this application.
Key timeline
#Practical implications
#Limits on Supreme Court stay jurisdiction
The Supreme Court cannot stay High Court proceedings; only Court of Appeal orders can be stayed. When appealing to the Supreme Court, ensure any stay is sought from the Court of Appeal or High Court, not the Supreme Court. Also, a dismissal is a negative order, not subject to stay, so no stay is possible.
Parastatal recruitment challenges continue
Businesses involved in parastatal appointments should note that High Court cases on recruitment can proceed despite appeals to the Supreme Court. The Supreme Court will not pause High Court proceedings. Legal challenges at the High Court level remain active until final determination. This means ongoing cases are unaffected by Supreme Court appeals, so businesses must continue to participate in High Court processes.
Challenging government appointments
If you are challenging government appointments in court, know that the Supreme Court cannot stop the High Court case while you appeal. You must seek any pause from the Court of Appeal or High Court itself. The Supreme Court only handles appeals from the Court of Appeal, so you cannot bypass the lower courts.
Frequently asked questions
#Can the Supreme Court of Kenya stop a High Court case?+
No. The Supreme Court can only stay proceedings from the Court of Appeal. It cannot leapfrog the Court of Appeal to stop a High Court case, as ruled in Justus Otiso v Magare-Gikenyi. This means you must seek stays from the Court of Appeal or High Court. The Supreme Court's jurisdiction is limited to appeals from the Court of Appeal under Article 163(4)(b) of the Constitution.
What happens if the Court of Appeal dismisses my case in Kenya?+
A dismissal is a negative order, meaning there is nothing to stay. If you appeal to the Supreme Court, you cannot ask it to pause the original High Court case. You must seek other remedies, for example, you could apply for a stay from the Court of Appeal or High Court.
How do I stop a High Court case while appealing to the Supreme Court in Kenya?+
You cannot ask the Supreme Court to stop the High Court case. You must first get a stay from the Court of Appeal or the High Court itself. The Supreme Court only handles appeals from the Court of Appeal. This is because its jurisdiction is limited to Court of Appeal decisions.
What is the jurisdiction of the Supreme Court of Kenya in stay applications?+
The Supreme Court can only stay proceedings and orders of the Court of Appeal, not the High Court. Its jurisdiction is limited to appeals from the Court of Appeal under Article 163(4)(b) of the Constitution. So, it cannot grant stays for High Court cases. This was confirmed in the Justus Otiso case.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Assembly v Gachagua & 66 others[2026] KESC 19 (KLR)30 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "Moi Teaching and Referral Hospital & another v Gikenyi B & 76 others", Case Analysis (2025). Petition (Application) E030 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/78/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.