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Court of AppealDismissedCivil Application No. NAI. 3 of 2011 (UR. 3/2011)

Registered Trustees of the Catholic Diocese of Machakos v Registrar of Titles, Nairobi & another [2011] KECA 307 (KLR)

Court of Appeal
18 March 2011
PWP. N. WakiVIVisramNYNyamu
301 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 confirmed you cannot appeal around a refused stay by asking it to stay the refusal itself—that tactic is improper.

What this practically means

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Executive summary

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This was an interlocutory ruling of the Court of Appeal at Nairobi (Waki, Visram and Nyamu JJ.A) in Civil Application No. NAI. 3 of 2011 (UR. 3/2011). The applicant, the Registered Trustees of the Catholic Diocese of Machakos, sought a stay of orders pending the lodging, hearing and determination of an intended appeal from a ruling of the High Court of Kenya at Machakos (Waweru J) dated 10 December 2010 in H.C. Misc. Civil Appl. No. 218 of 2010. The specific difficulty was that the High Court had itself refused a stay; the applicant therefore asked the Court of Appeal to stay the order refusing stay. Waki JA, who delivered the ruling after perusing the draft rulings of his two colleagues, agreed with Nyamu JA that weighty issues of fact and law, and questions of public and private interest, lay before the superior court in the pending judicial review application and would also arise in the intended appeal. However, the court confined itself to the narrow question whether the interlocutory application was proper. It held that staying an order refusing stay would amount to granting the very order the superior court had rejected before the appeal was heard, and so the application was improper. The final order, as proposed by Visram JA, was dismissal of the application with costs. The decision below was not disturbed on the merits; only the competency of the interlocutory application was determined.

Questions the Court framed

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

  1. 1.Whether an interlocutory application seeking to stay the superior court's order refusing a stay of its own orders is proper before the intended appeal is lodged, heard and determined

Key legal issues

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01

Whether an application to stay an order refusing stay is a proper interlocutory application before the Court of Appeal

Holding

The application is improper and must be dismissed; a party cannot obtain by an application for stay of a refusal of stay the substantive relief already denied by the superior court, before the intended appeal is heard.

Reasoning

The court confined itself to the limited question of the propriety of the interlocutory application rather than the merits of the underlying judicial review matter or the intended appeal. It reasoned that staying the superior court's order refusing a stay would effectively reverse that refusal, granting relief never allowed, and thereby pre-empting both the pending judicial review proceedings and the appellate court's consideration of the intended appeal. Accordingly, the applicant's sympathy-invoking circumstances could not cure the impropriety of the course taken.

p. 1

Legal principles established

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  • The Court of Appeal will not entertain an application to stay an order refusing a stay, because such an application seeks indirectly the relief the superior court has already refused, and is therefore improper.

Court orders

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  1. 1.Dismissal of the applicant's application for stay of the High Court's orders pending the intended appeal
  2. 2.Costs of the application awarded as proposed in Visram JA's draft ruling

The bench

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

PW
majority

Wrote the judgment

Waki JA, after perusing the draft rulings of Visram and Nyamu JJ.A, agreed with the course proposed by Visram JA: the application seeking to stay the superior court's order refusing stay was improper as it would amount to granting the order that was rejected, and should be dismissed with costs.

In the result the final order would be as proposed by Visram JA for dismissal of the application with costs as proposed therein.p. 1
VI
majority
NY
majority
On appeal from
High Court of Kenya at Machakos
H. C. Misc. Civil Appl. No. 218 of 2010
Jurisdiction invoked
Inherent appellate jurisdiction over interlocutory applications (Civil Application No. NAI. 3 of 2011 (UR. 3/2011), a rule of the Court of Appeal application for stay pending intended appeal)

Relief refused

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Stay of the High Court's order refusing stay, pending the lodging, hearing and determination of an intended appeal

The application was improper: granting it would amount to granting the very order the superior court had rejected, before the intended appeal was even heard.

p. 1

Costs

Application dismissed with costs to the respondents, as proposed in Visram JA's draft ruling.

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.

In essence what the applicant prays we do is to stay the order of the superior court refusing stay, which would amount to granting the order that was rejected even before the intended appeal is heard.
p. 1Impropriety of applying to stay an order refusing stay
In the result the final order would be as proposed by Visram JA for dismissal of the application with costs as proposed therein.
p. 1Final orders - dismissal with costs

Issues in the judgment

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minor

The judgments of Visram JA and Nyamu JA (draft rulings referred to by Waki JA) are not reproduced in the extract; the bench's full reasoning and the precise costs order as proposed by Visram JA cannot be verified from the text provided.

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, "Registered Trustees of the Catholic Diocese of Machakos v Registrar of Titles, Nairobi & another [2011] KECA 307 (KLR)", Case Analysis (2011). Civil Application No. NAI. 3 of 2011 (UR. 3/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/307/eng@2011-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.