NIAZSONS (K) LIMITED v CHINA ROAD & BRIDGE CORPORATION (KENYA) [2000] KECA 382 (KLR)

The Court examined precisely what the learned judge had decided: he determined the preliminary objections but neither dismissed nor granted the stay application, which therefore remained pending. Because section 75(1)(d) of the Civil Procedure Act is the only basis for an appeal as of right in respect of orders granting or refusing a stay, and no such order existed, the section had not even begun to apply to the facts. The appellant's remedy was an appeal with leave of the superior court or, failing that, of the Court of Appeal.

Having found that the appeal lay only with leave, the Court observed that it was not in dispute that no leave had been sought or obtained. Jurisdiction being a precondition to the exercise of judicial power, the Court held it had no jurisdiction to make any order in the matter, and stated that it was unable to confer jurisdiction upon itself to entertain an appeal which lies only with leave when no leave has been sought or obtained.

Counsel for the appellant argued that the respondent's course of conduct amounted to a representation that there was a right to appeal, raising an estoppel. The Court assumed, without deciding, that a binding representation about legal relations existed, yet held that even such a representation could not cure the want of leave: an estoppel cannot run against a statute, and jurisdiction cannot be founded on estoppel, consent, acquiescence or default. The want of leave was therefore fatal.