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Supreme CourtPartially AllowedPetition 44 of 2018

Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited

Supreme Court of Kenya
6 August 2019
2,851 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Supreme Court cannot hear appeals on stay rulings made by the Court of Appeal.

What this practically means

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The Supreme Court ruled that it lacks the power to hear appeals against decisions made by the Court of Appeal on whether to pause court orders (stay of execution) while a main case is ongoing. This means that if the Court of Appeal grants or refuses a stay, the Supreme Court cannot review that choice. The ruling upholds earlier decisions that such discretionary rulings are final on that procedural point, not open to further appeal.

Executive summary

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This judgment arises from a Notice of Motion application by Kenya Power & Lighting Company Limited (KPLC) seeking to strike out a Petition of Appeal filed by Kenya African National Union (KANU) and two officials. The appeal challenged a Court of Appeal ruling of 26th October 2018 that dismissed KANU's application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules, 2010, pending an appeal against a High Court decision. The Supreme Court, in a unanimous decision delivered by Deputy Chief Justice Mwilu, held that it lacked jurisdiction to entertain the appeal. The Court relied on its established jurisprudence in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another and Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, which established that discretionary decisions of the Court of Appeal under Rule 5(2)(b) are not appealable to the Supreme Court. The Court noted that the substantive appeal was still pending before the Court of Appeal, and the decision challenged was a discretionary stay ruling, not a final determination on the merits. Consequently, the Court allowed KPLC's application, struck out the petition of appeal for want of jurisdiction, and ordered KANU to bear the costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the appeal filed before it.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal from a Court of Appeal decision made under Rule 5(2)(b) of the Court of Appeal Rules, 2010.

Holding

The Supreme Court lacks jurisdiction to hear such an appeal because decisions under Rule 5(2)(b) are discretionary and not appealable to the Supreme Court.

Reasoning

The Court relied on its prior jurisprudence in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another and Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, which established that discretionary decisions of the Court of Appeal under Rule 5(2)(b) are not subject to appeal to the Supreme Court. The Court found that the substantive appeal was still pending in the Court of Appeal, and the decision challenged was a discretionary stay ruling, not a final determination on the merits. Therefore, the petition of appeal was fatally defective for want of jurisdiction.

Legal principles established

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  • The Supreme Court has no jurisdiction over appeals from discretionary stay rulings under Rule 5(2)(b) of Court of Appeal Rules.
  • A discretionary stay decision is not a final judgment on the merits of the case.
  • An appeal to the Supreme Court is only valid if a substantive appeal is pending before that Court.
  • Previous Supreme Court rulings in similar cases (Daniel Kimani Njihia and Teachers Service Commission) set a binding precedent on this issue.

Court orders

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  1. 1.The Notice of Motion application dated 4th February 2019 is hereby allowed.
  2. 2.The Petition of Appeal dated 30th November 2018 and filed on 3rd December 2018 is hereby struck out for want of jurisdiction.
  3. 3.The Petitioners/Respondents shall bear the Applicant’s costs of the application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No. 149 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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The Petition of Appeal dated 30th November 2018

The Court lacked jurisdiction to entertain the appeal because the decision of the Court of Appeal was made in exercise of its discretionary jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2010.

Costs

The Petitioners/Respondents shall bear the Applicant’s costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.
p. 7 Jurisdiction of the Supreme Court over Court of Appeal discretionary decisions
Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate.
p. 6 Scope of appeals to the Supreme Court

Key timeline

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2018-10-26
Court of Appeal dismissed KANU's application for stay of execution under Rule 5(2)(b).
2018-11-30
KANU filed a Petition of Appeal to the Supreme Court challenging the stay ruling.
2019-02-04
KPLC filed a Notice of Motion to strike out KANU's appeal for lack of jurisdiction.
2019
Supreme Court allowed KPLC's motion and struck out KANU's appeal.

Practical implications

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For lawyers

Limit appeals on interim orders

Do not file an appeal to the Supreme Court against a Court of Appeal decision on a stay application under Rule 5(2)(b). Such appeals will be struck out for want of jurisdiction. Instead, focus on the substantive appeal before the Court of Appeal or seek other remedies within the appellate framework.

For businesses

Stay rulings are final in Kenya

If you win or lose a stay order from the Court of Appeal, that decision cannot be overturned by the Supreme Court. Plan your litigation strategy knowing that interim procedural rulings (like pausing a judgment) end at the Court of Appeal level. You must win your main case there first.

For individuals

No Supreme Court review for stay issues

As an individual in Kenya, if the Court of Appeal either grants or refuses a stay (temporary halt) on a court order, you cannot take that specific ruling to the Supreme Court. Your only path is to continue with the main case in the Court of Appeal—the Supreme Court cannot intervene on that procedural decision.

Frequently asked questions

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Can the Supreme Court in Kenya review a Court of Appeal stay order?+

No. The Supreme Court ruled it has no jurisdiction to hear appeals against Court of Appeal decisions on stay applications made under Rule 5(2)(b). These are discretionary interim rulings, not final judgments, so they cannot be appealed to the highest court.

What is Rule 5(2)(b) of the Court of Appeal Rules in Kenya?+

It is a rule that allows someone to ask the Court of Appeal to pause (stay) a lower court's order while they appeal that order. The Court of Appeal has discretion to grant or refuse the stay. This Supreme Court decision says you cannot challenge that discretion further.

Is the Supreme Court's decision in KPLC vs KANU binding in Kenya?+

Yes. The Supreme Court followed its earlier decisions in Daniel Kimani Njihia and Teachers Service Commission, creating a binding precedent. Any future appeal against a stay ruling under Rule 5(2)(b) will be struck out automatically.

What should I do if the Court of Appeal denies a stay in Kenya?+

You cannot appeal that denial to the Supreme Court. Instead, focus on speeding up your main appeal in the Court of Appeal and seek other procedural remedies there, such as asking for an expedited hearing.

Cite this brief

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Cite this brief

Caselaw, "Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited", Case Analysis (2019). Petition 44 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/25/eng@2019-08-06

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