ATTORNEY GENERAL V LAW SOCIETY OF KENYA & ANOTHER [2009] KECA 454 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a ruling that voided parts of the Work Injury Benefits Act, confirming stays cannot undo judgments or bind strangers to an appeal.
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 Court has jurisdiction under Rule 5(2)(b) to grant prayers (b), (c) and (d) of the motion
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory if a stay of execution of the High Court's orders is refused
Key legal issues
#Scope of the Court's jurisdiction under Rule 5(2)(b)
The jurisdiction is limited to orders of stay of execution, injunction or stay of further proceedings tied to a decision of the superior court against which a notice of appeal has been lodged; it does not extend to unrelated suits or to prospective litigants.
The rule presupposes a decision of the superior court and an aggrieved party who has filed a notice of appeal. Sweeping orders touching unidentified pending suits or barring future suits would affect strangers to the appeal without notice. The applicant's prayers (b), (c) and (d) therefore fell outside the rule and showed a total lack of appreciation of the Court's jurisdiction.
Whether an arguable appeal was demonstrated
Yes; one arguable point suffices and counsel for the 1st respondent conceded one or two arguable points.
The Court reiterated its settled practice that a single arguable point meets the first limb of the Rule 5(2)(b) test; the applicant need not demonstrate a chain of arguable points. The concession by the 1st respondent's counsel satisfied the Court that the intended appeal was not frivolous.
Whether the appeal would be rendered nugatory without a stay
No; the only enforceable order was that on costs, and the nullification orders were not positive orders capable of execution.
Ojwang', J merely nullified sections of the Work Injury Benefits Act; those orders required no party to do, refrain from doing, or pay anything. Granting a stay would in effect reverse the judgment and restore the nullified sections, which is impermissible on a stay application. There was no material showing enforcement of the costs order was imminent.
Legal principles established
#- Rule 5(2)(b) jurisdiction is confined to stay of execution, injunction or stay of further proceedings in respect of a decision of the superior court against which a notice of appeal has been filed; it does not extend to unrelated pending or future suits whose parties are not before the Court.
- One arguable point suffices under Rule 5(2)(b); an applicant need not show a chain of arguable points.
- A stay of execution cannot issue in respect of a negative or declaratory order that requires no party to do or refrain from doing anything or to pay any sum; a stay cannot restore what the judgment nullified.
Court orders
#- 1.The notice of motion dated 20th May 2009 and lodged on 27th May 2009 is dismissed
- 2.The costs of the dismissed motion shall be in the intended appeal or shall abide further orders of the Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 185 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, made pursuant to the Appellate Jurisdiction Act
Relief refused
#Stay of execution of the High Court judgment of 4th March 2009 (prayer (a))
The orders nullifying sections of the Work Injury Benefits Act were not positive orders capable of execution; a stay cannot restore nullified sections into operation
Injunction or stay of proceedings in all pending work-injury civil suits (prayer (b))
Rule 5(2)(b) jurisdiction does not extend to unidentified suits in which no decision has been made and whose parties have not been served
Order restraining fresh work-injury suits pending appeal (prayer (c))
The Court has no power under Rule 5(2)(b) to bar intending litigants who are not parties to the appeal
Order that work-injury claims be dealt with under the Work Injury Benefits Act pending appeal (prayer (d))
Outside the jurisdiction conferred by Rule 5(2)(b); the orders sought showed a lack of appreciation of that jurisdiction
Costs
Costs of the dismissed motion shall be in the intended appeal or shall abide further orders of the Court.
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.
The Court has held many times over that one arguable point is sufficient for the purposes of Rule 5 (2) (b) and that an applicant under that rule is not required to show a chain of arguable points.
A “stay” does not reverse, annul, undo or suspend what already has been done or what is not specifically stayed nor pass on the merits of the orders of the trial court, but merely suspends the time required for performance of the particular mandates stayed, to preserve a status quo pending appeal.
we now order that the notice of motion dated 20th May, 2009 and lodged in this Court on 27th May, 2009 must be and is hereby dismissed. The costs of the dismissed motion shall be in the intended appeal or shall abide further orders of the Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ATTORNEY GENERAL V LAW SOCIETY OF KENYA & ANOTHER [2009] KECA 454 (KLR)", Case Analysis (2009). Civil Application No. 144 of 2009 (UR 97/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/454/eng@2009-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.