Law Society of Kenya v Attorney General & another
The bottom line
#Supreme Court denied LSK's stay because delay made it against public interest, despite an arguable appeal.
What this practically means
#The Law Society of Kenya asked the Supreme Court to stop a Court of Appeal ruling that moved work injury cases from magistrates to a government director. The Court said it could grant such stays, but LSK waited over a year after the ruling and months after the director started handling cases. Granting a stay now would disrupt ongoing cases and confuse the process. The appeal will still be heard, but the stay was refused.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution of the Court of Appeal judgment is merited.
- 2.Whether the appeal is arguable and not frivolous.
- 3.Whether the appeal would be rendered nugatory if the stay is not granted.
- 4.Whether it is in the public interest to grant the stay.
Key legal issues
#Whether the Supreme Court has jurisdiction to grant a stay of execution of a Court of Appeal judgment.
The Supreme Court has jurisdiction to grant a stay of execution of decrees issued by other superior courts, including the Court of Appeal.
The Court relied on Section 21(2) & (3) of the Supreme Court Act 2011, which allows the Court to make ancillary or interlocutory orders, read together with Rule 3(5) of the Supreme Court Rules, 2012, which preserves the Court's inherent powers. The Court also cited its previous decisions in Board of Governors, Moi High School, Kabarak & Another v Melcom Bell [2013] eKLR and Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR, which confirmed this jurisdiction.
Whether the applicant demonstrated sufficient grounds for the grant of a stay of execution.
The applicant failed to demonstrate genuine conditions of urgency, merit and dispatch, and the delay in filing the application weighed against granting the stay.
The Court found that although the appeal was arguable, the time lapse between the delivery of the Court of Appeal judgment on 17th November 2017, the issuance of the implementing circular on 11th July 2018, and the filing of the application on 1st February 2019 was such that granting a stay would not serve the public interest and would confuse the ongoing adjudication process. The Court also noted that the applicant did not put forward sufficiently convincing evidence of urgency, merit, and dispatch.
Legal principles established
#- The Supreme Court has jurisdiction to stay execution of decrees from other superior courts.
- A stay requires the appeal to be arguable and not frivolous, and the appeal would be rendered nugatory without it.
- Public interest is a third condition for granting a stay in the Supreme Court.
- Stay is not automatic; the applicant must show genuine urgency, merit, and dispatch.
- Unexplained or inordinate delay in filing a stay application weighs against granting it.
- Granting a stay at a late stage can confuse ongoing adjudication and harm public interest.
Court orders
#- 1.The application dated 1st February, 2019 is hereby dismissed.
- 2.The appeal herein shall be set down for hearing on 14th June 2019 to enable the Court determine the issues in contestation.
- 3.The Deputy Registrar of this Court is directed to ensure that all necessary documents are filed by the parties before the hearing.
- 4.Costs of the application shall abide the Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No. 133 of 2011
- Jurisdiction invoked
- Articles 1, 41(1), 159, 163, 258, 259 of the Constitution; Sections 3, 21(2), 24(1) of the Supreme Court Act 2011; Rules 3, 23, 26 of the Supreme Court Rules 2012
Relief refused
#Stay of execution of the whole of the Judgment of the Court of Appeal in Civil Appeal No. 133 of 2011
The time lapse between the delivery of the Court of Appeal Judgment, the issuing of the circular implementing the Judgment and the date of filing this application is such that the grant of an order of stay at this late hour would not serve the public interest and would only serve to confuse the on-going adjudication process in Work Injury Benefits cases.
Restoration of the status quo prevailing before delivery of the Court of Appeal judgment
The application for stay was dismissed, and the court found no genuine conditions of urgency, merit and dispatch.
Costs
Costs of the application shall abide the Appeal.
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 Applicants in the present Application do not put forward sufficiently convincing evidence of 'genuine conditions of urgency, merit and dispatch' and although the appeal is certainly arguable, we agree with the Respondents that the time lapse between the delivery of the Court of Appeal Judgment, the issuing of the circular implementing the Judgment and the date of filing this application is such that the grant of an order of stay at this late hour would not serve the public interest and would only serve to confuse the on-going adjudication process in Work Injury Benefits cases.
The application dated 1st February, 2019 is hereby dismissed;
Costs of the application shall abide the Appeal.
a grant of stay of existing orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch - which in this case are missing.
Key timeline
#Practical implications
#Delay defeats stay applications
When seeking a stay of execution in the Supreme Court, file promptly. The Court will assess urgency, merit, and dispatch. Even if the appeal is arguable, an unexplained delay of over a year (as here) can make the stay against public interest. Document the timeline and reasons for any delay to avoid dismissal.
Work injury claims now under Director
For now, disputes under the Work Injury Benefits Act are handled by the Director of Occupational Safety and Health Services, not magistrates. The LSK's appeal is still pending, but the stay was refused. Businesses should ensure compliance with the Director's procedures until the Supreme Court decides the appeal. Monitor the June 2019 hearing for further changes.
Your injury claim route is unchanged
If you have a work injury claim, continue using the Director of Occupational Safety and Health Services as required by the Court of Appeal judgment. The Supreme Court refused to pause that system. The LSK's appeal might change things later, but for now, do not expect magistrates to handle your case. File your claim with the Director.
Frequently asked questions
#What is the Law Society of Kenya v Attorney General case about in Kenya?+
The Law Society of Kenya challenged a Court of Appeal ruling that moved jurisdiction over Work Injury Benefits Act cases from Magistrates' Courts to the Director of Occupational Safety and Health Services. The Supreme Court refused to stop that ruling while the appeal is heard, because LSK delayed too long in seeking a stay.
Can the Supreme Court of Kenya stay a Court of Appeal judgment?+
Yes. The Supreme Court has jurisdiction to grant a stay of execution of decrees from other superior courts, including the Court of Appeal. However, the applicant must show the appeal is arguable, would be nugatory without a stay, and that a stay is in the public interest.
How long can you delay filing a stay application in Kenya?+
There is no fixed deadline, but delay is critical. In this case, a delay of over a year from the Court of Appeal judgment and months after implementation led the Supreme Court to deny the stay. The longer you wait, the harder it is to prove urgency and that the stay will not disrupt proceedings.
What is the Work Injury Benefits Act jurisdiction dispute in Kenya?+
The dispute is about which body handles work injury claims. The Court of Appeal said the Director of Occupational Safety and Health Services should handle them, not Magistrates' Courts. The Law Society argued this limits access to justice. The Supreme Court will hear the appeal, but for now, the Director remains in charge.
Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Attorney General & another", Case Analysis (2019). Civil Application 4 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/30/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.