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Court of AppealStruck OutKisumu Civil Appeal (Application) No. 142 of 2018

Kenya Electricity Transmission Company Limited (Ketraco) v George Ngwena Obonyo & another [2020] KECA 23 (KLR)

Court of Appeal
4 December 2020
RNR. N. NambuyeMartha Karambu KoomeM. K. KoomePKP. O. Kiage
902 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it has no power to pause proceedings in a Magistrate's Court, striking out KETRACO's application.

What this practically means

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Executive summary

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KETRACO, the appellant in a pending appeal (Civil Appeal No. 142 of 2018) against a decision of the Environment and Land Court (Kibunja, J.) dated 2nd May 2018 in Kisumu ELC Suit No. 334 of 2016, moved the Court of Appeal by Notice of Motion dated 21st November 2019 under Articles 159 and 164(3) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 5(2)(b) of the Court of Appeal Rules. It sought a stay of proceedings in Kisumu Chief Magistrate's Court CMELC No. 252 of 2018, in which the respondents had sued it, pending determination of the appeal, together with directions to expedite the appeal. The application was not opposed. The Court (Nambuye, Koome and Kiage JJ.A.) reviewed the authorities on the overriding objective, the non-technicality principle, the inherent power of the Court and the rule 5(2)(b) criteria, including the Owners of the Motor Vessel 'Lillian S' jurisdictional principle that jurisdiction flows from the Constitution or legislation. Applying those cumulative thresholds, the Court held that it had no jurisdiction to stay proceedings before a Magistrate's Court and struck the application out for want of jurisdiction, making no order for costs as the application was undefended. The decision below was not disturbed; the substantive appeal remains pending before the Court.

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 of Appeal has jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules to stay proceedings in a Magistrate's Court (Kisumu CMELC No. 252 of 2018) pending the hearing and determination of the appeal against the Environment and Land Court's decision

Key legal issues

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01

Whether the Court of Appeal can grant a stay of proceedings before a subordinate court in a rule 5(2)(b) application

Holding

It cannot; the application was struck out for want of jurisdiction.

Reasoning

The Court applied the cumulative thresholds governing rule 5(2)(b) applications and the settled principle that jurisdiction flows from the Constitution or legislation. Nothing in the constitutional mandate of a court permits it to act against clear provisions of the law. Since the relief sought was a stay of proceedings in a Magistrate's Court, the Court found it lacked jurisdiction to grant that relief and struck the application out.

p. 2

Legal principles established

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  • The Court of Appeal has no jurisdiction to stay proceedings of a Magistrate's Court; a rule 5(2)(b) application seeking such a stay is incompetent and must be struck out.
  • Jurisdiction is everything; a court without mandate must down tools the moment the absence of jurisdiction becomes apparent.

Court orders

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  1. 1.The applicant's application dated 21st November 2019 is struck out for want of jurisdiction
  2. 2.No order for costs as the application was undefended

The bench

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

RN
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
PK
majority
On appeal from
Environment and Land Court
Kisumu ELC Suit No. 334 of 2016
Jurisdiction invoked
Articles 159 and 164(3) of the Constitution of Kenya; sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9); Rules 1(2) and 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of proceedings in Kisumu Chief Magistrate's Court CMELC No. 252 of 2018 pending the hearing and determination of Civil Appeal No. 142 of 2018

The application was incompetent because the Court of Appeal lacks jurisdiction to stay an order of a Magistrate's Court

p. 2

Costs

No order for costs as the application was undefended.

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.

we find the same incompetent for want of jurisdiction in this Court to stay an order of a Magistrate's Court
p. 2Want of jurisdiction to stay subordinate court proceedings
The applicant's application dated 21st November 2019 is accordingly struck out for want of jurisdiction.
p. 2Final orders
There will be no order for costs as the application was undefended.
p. 2Costs
jurisdiction is everything and without it a court of law has no mandate dealing with a matter and has to down tools the moment it dawns on it that it has no jurisdiction
p. 2Jurisdiction

Issues in the judgment

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minor

The respondent's name is rendered inconsistently in the judgment: the coram lists 'PETER CHIENG' OPIYO' while the body of the ruling refers to 'Peter Ochieng Opiyo'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Electricity Transmission Company Limited (Ketraco) v George Ngwena Obonyo & another [2020] KECA 23 (KLR)", Case Analysis (2020). Kisumu Civil Appeal (Application) No. 142 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/23/eng@2020-12-04

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