WALTER KABETU BACHA & 4 others v LANDS DISPUTE TRIBUNAL KIAMBU WEST & another [2009] KECA 261 (KLR)
The bottom line
#The Court of Appeal struck out a bid to stop a land tribunal's decision, confirming its stay powers are limited to the High Court's decision being 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 applicants satisfied the principles for grant of stay under Rule 5(2)(b)
- 2.Whether the Court has jurisdiction under Rule 5(2)(b) to stay a decision of the Land Disputes Tribunal rather than the decision of the superior court appealed from
- 3.Whether the Court can grant a stay of proceedings where the superior court refused leave to apply for judicial review
Key legal issues
#Scope of stay jurisdiction under Rule 5(2)(b)
The stay of execution under Rule 5(2)(b) relates only to the decision of the superior court appealed from; the Court cannot stay execution of a tribunal decision that was not the subject of the notice of appeal.
The Court's jurisdiction under Rule 5(2)(b) derives from the filing of the Notice of Appeal against the superior court's decision. The notice of appeal here was against the dismissal of leave to apply for judicial review, not against the Tribunal's Award. Since the superior court made no order capable of execution save an order for costs, and the applicants did not seek to stay costs, no execution within the Court's jurisdiction existed to be stayed.
Appellate grant of stay where leave for judicial review was refused
Grant of leave to apply for certiorari or prohibition is a prerequisite to a stay of the impugned proceedings; where leave was refused below, the Court of Appeal cannot grant a stay in anticipation that leave may ultimately be granted on appeal.
Order LIII rule 1(4) permits the Judge, when granting leave, to direct that the grant operate as a stay. The superior court refused leave, so it had no jurisdiction to grant a stay, and the Court of Appeal, exercising appellate jurisdiction under section 3(2) of the Appellate Jurisdiction Act, can grant no interim relief the superior court could not have granted. The question of leave falls for determination at the hearing of the intended appeal.
Legal principles established
#- A stay of execution under Rule 5(2)(b) can only relate to the subject matter of the notice of appeal, namely the decision of the superior court appealed from, and the Court lacks jurisdiction to stay execution of a decision of a subordinate tribunal.
- The Court of Appeal under Rule 5(2)(b) has no jurisdiction to grant interim reliefs that the superior court had no jurisdiction to grant; since grant of leave is a prerequisite to a stay of judicial review proceedings, no stay can issue where leave was refused.
Court orders
#- 1.The application is struck out with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 88 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of any further proceedings in any court in the Republic
The order sought was too general, referred to no specific proceedings, and the superior court had found no pending proceedings in the magistrate's court relating to enforcement of the Award
Stay of execution of the Tribunal's Award of 23rd May, 2008
Rule 5(2)(b) jurisdiction derives from the notice of appeal and can only relate to the decision of the superior court appealed from; the superior court made no order capable of execution save costs
Stay of proceedings pending grant of leave to apply for judicial review
Grant of leave is a prerequisite to a stay; the superior court did not grant leave and the Court cannot act in vacuo on the expectation that leave may ultimately be granted
Costs
No orders as to costs - the application was struck out with no orders as to costs
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.
It follows that this Court lacks jurisdiction under Rule 5 (2) (b) to stay execution of the decision of the Land Disputes Tribunal.
In the light of the foregoing, the application is incompetent. It is struck out with no orders as to costs
the stay of execution referred to in Rule 5 (2) (b) can only relate to the subject matter of the notice of appeal – that is, the decision of the superior court appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WALTER KABETU BACHA & 4 others v LANDS DISPUTE TRIBUNAL KIAMBU WEST & another [2009] KECA 261 (KLR)", Case Analysis (2009). Civil Application No. 89 of 2009 (UR. 55/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/261/eng@2009-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.