Text Book Centre Limited v Kipyator Nicholas Kiprono Biwott [2001] KECA 241 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed all four applications by the 'Rogue Ambassador' publisher, confirming judges' hearing directions cannot be appealed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of proceedings pending an intended appeal from the amendment of the Chamber Summons was urgent and should be granted
- 2.Whether an appeal lies from the judge's direction as to the sequence in which applications before him should be heard
- 3.Whether leave to appeal should be granted on the applications before the court
- 4.Whether leave to appeal against the exercise of judicial discretion on an interlocutory application should be granted
Key legal issues
#Appealability of administrative directions
A judge's direction as to the sequence in which applications are to be heard is an administrative directive, not a judicial order, and no appeal lies from it; consequently neither leave to appeal nor a stay can be granted.
The learned judge had referred to his decisions as a 'direction and order', but the Court of Appeal held that the choice of words showed he never intended a judicial decision. Relying on Omolo, J.A. in Mary Anne Njuguna, the court held that an appeal does not lie against an administrative directive, making leave or a stay futile. The application also failed for want of urgency and absence of demonstrated prejudice.
Leave to appeal against exercise of interlocutory discretion
Where leave to appeal against the exercise of a judge's discretion on a purely interlocutory application has already been refused, a fresh application for leave faces a very difficult task.
Applying Sir Charles Newbold, P. in Aggarwal v Official Receiver, the court noted that the subject of the intended appeal is the exercise of discretion in purely interlocutory proceedings which will not determine any matter between the parties. The court must have regard to the fact that leave has already been refused, and absent material and urgency, the application fails.
Urgency certification and stay of proceedings
A stay of proceedings pending an intended appeal from an interlocutory decision amending a Chamber Summons will be refused where no urgency is shown and no miscarriage of justice is demonstrated, since any error can be corrected in an appeal against the final decree.
The respondent contended there was no urgency, no error in amending the Chamber Summons under section 100 of the Civil Procedure Act, and no miscarriage of justice. The court agreed that judicial discretion had been exercised and that any error could be dealt with in an appeal against the final decree, and dismissed the application with costs.
Legal principles established
#- No appeal lies against an administrative directive of a judge; directions as to the sequence of hearing applications are administrative and not appealable decisions
- An applicant seeking leave to appeal against the exercise of a judge's discretion on a purely interlocutory matter, where leave has already been refused, faces a very difficult task
Court orders
#- 1.Civil Application No. NAI 381 of 2001 dismissed with costs
- 2.Civil Application No. NAI 382 of 2001 dismissed with costs
- 3.Civil Application No. NAI 385 of 2001 dismissed with costs
- 4.Civil Application No. NAI 386 of 2001 dismissed with costs
- 5.All four applications dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Rule 47(5) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. NAI 382 of 2001, Civil Application No. NAI 385 of 2001, Civil Application No. NAI 386 of 2001
Relief refused
#Stay of proceedings pending intended appeal (Application No. NAI 381 of 2001)
No urgency involved; any error by the learned judge can be dealt with in an appeal against the final decree
Leave to appeal and stay in respect of the judge's directions on sequence of hearing (Application No. NAI 382 of 2001)
The directions were administrative, not judicial decisions, so no appeal lies
Application for leave (Application No. NAI 385 of 2001)
No material before the court and no urgency demonstrated
Application for urgency against the judge's 'direction' (Application No. NAI 386 of 2001)
No appeal lies from the direction
Costs
All four applications dismissed with costs to the respondent
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.
For these reasons, all the four applications are dismissed with costs.
Those directions remain no more than administrative ones, however, widely framed.
I am satisfied that there is no urgency involved and the application should be dismissed, as I hereby do, with costs.
In the circumstances it seems to me that the applicant faces a very difficult task.
Key timeline
#Practical implications
#Frequently asked questions
#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.
- Francis Matheka Kata v Betty Kamene Kimote & 2 others [2022] KEELC 229 (KLR)[2022] KEELC 229 (KLR)20 Apr 2022
Cite this brief
#Cite this brief
Caselaw, "Text Book Centre Limited v Kipyator Nicholas Kiprono Biwott [2001] KECA 241 (KLR)", Case Analysis (2001). Civil Applications Nos. NAI 381, 382, 385 and 386 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/241/eng@2001-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.