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Court of AppealDismissedCivil Application No. 144 of 2009 (UR 97/2009)

ATTORNEY GENERAL V LAW SOCIETY OF KENYA & ANOTHER [2009] KECA 454 (KLR)

Court of Appeal of Kenya
10 July 2009
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Attorney General applied under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of the judgment of Ojwang', J of 4th March 2009 in H.C. Petition No. 185 of 2008, which declared nine sections of the Work Injury Benefits Act, 2007 null and void for inconsistency with the Constitution, and ordered the Attorney General to pay the Law Society of Kenya's costs. The motion sought four orders: a stay of execution of the judgment; an injunction or stay of all pending work-injury suits; a bar on fresh work-injury suits; and a direction that work-injury claims continue to be handled under the Act pending appeal. The Court of Appeal (Omolo, Waki and Aganyanya, JJA) held that Rule 5(2)(b) conferred no jurisdiction over prayers (b), (c) and (d), since the rule is confined to decisions of the superior court against which a notice of appeal has been filed, and could not operate against unidentified suits or strangers to the appeal. On prayer (a), the Court accepted the intended appeal was arguable, one arguable point sufficing, but found the second limb unsatisfied: the nullification orders were not positive orders capable of execution, and the only enforceable order was the costs order, with no evidence of imminent enforcement. Relying on Kileleshwa Service Station v Kenya Shell and Western College v Oranga, the Court held that a stay cannot restore nullified statutory provisions, as that would reverse the judgment below on a stay application. The motion was dismissed with costs in the intended appeal.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction under Rule 5(2)(b) to grant prayers (b), (c) and (d) of the motion
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the appeal would be rendered nugatory if a stay of execution of the High Court's orders is refused

Key legal issues

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01

Scope of the Court's jurisdiction under Rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 2
02

Whether an arguable appeal was demonstrated

Holding

Yes; one arguable point suffices and counsel for the 1st respondent conceded one or two arguable points.

Reasoning

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.

p. 2
03

Whether the appeal would be rendered nugatory without a stay

Holding

No; the only enforceable order was that on costs, and the nullification orders were not positive orders capable of execution.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 20th May 2009 and lodged on 27th May 2009 is dismissed
  2. 2.The costs of the dismissed motion shall be in the intended appeal or shall abide further orders of the Court

The bench

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

majority
majority
majority
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

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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

p. 3

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

p. 2

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

p. 2

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

p. 2

Costs

Costs of the dismissed motion shall be in the intended appeal or shall abide further orders of the Court.

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.

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.
p. 2Arguability test under Rule 5(2)(b)
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.
p. 3Nature of a stay of execution (quoting Black's Law Dictionary)
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.
p. 3Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.