Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others
The bottom line
#Supreme Court cannot hear appeals from Court of Appeal interim orders unless a main appeal is pending.
What this practically means
#The Supreme Court ruled it has no power to review a Court of Appeal decision to temporarily stop a High Court ruling. That decision is not a final appeal. The applicant tried to challenge a stay order, but the Supreme Court only handles final appeals, not interim steps. So the stay remains until the Court of Appeal finishes the main case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear appeals arising from interlocutory orders of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal rules.
- 2.If answered in the affirmative, what are appropriate reliefs for this Court to grant?
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal from an interlocutory order of the Court of Appeal made under Rule 5(2)(b) of the Court of Appeal Rules.
The Supreme Court lacks jurisdiction to entertain such an application where there is no pending or intended appeal before it.
The Court held that its jurisdiction is limited and flows from the Constitution and legislation. Rule 5(2)(b) orders are derived from Article 164(3) of the Constitution and are discretionary and interlocutory in nature. They do not constitute a final appealable decision under Article 163(4)(a). The Court reaffirmed its earlier decision in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, declining to depart from it. The Court distinguished Deynes Muriithi & 4 others v. Law Society of Kenya & another, noting that the applicant had not demonstrated that the Court of Appeal's order had a pre-emptive effect on the pending appeals.
Whether the Preliminary Objection by SICPA was incompetent for raising issues of fact.
The Preliminary Objection was competent as it raised a pure point of law, namely the jurisdiction of the Supreme Court.
The Court found that the Preliminary Objection mainly challenged the jurisdiction of the Supreme Court to entertain the application, which is a pure point of law. No contested facts needed to be ascertained in determining the issue of jurisdiction, distinguishing it from the principle in Mukisa Biscuit Co v. West End Distributors.
Legal principles established
#- Supreme Court jurisdiction is limited to final appeals under Article 163(4)(a), not interlocutory orders.
- Interlocutory applications under Rule 5(2)(b) are not appeals as defined by Article 164(3) of the Constitution.
- A preliminary objection on jurisdiction is a pure point of law and can be raised even if it references facts.
- The Court will not depart from precedent unless strong arguments are made.
- An applicant must show the interlocutory order has a pre-emptive effect on the main appeal to invoke Supreme Court jurisdiction.
Court orders
#- 1.The Notice of Appeal dated 8th June 2018 is hereby struck off.
- 2.The Notice of Motion dated 31st July 2018 is hereby allowed.
- 3.The Notice of Preliminary Objection dated 17th July 2018 is hereby upheld.
- 4.The Applicant shall bear the costs of all the Respondents in all the applications.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Application No. 76 of 2018 (UR 67/2018) consolidated with Civil Application No. 78 of 2018 (UR 68/2018)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of the orders granted on 11th May 2018 by the Court of Appeal
The Court lacked jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules where there is neither an appeal, nor an intended appeal pending before the Supreme Court.
Certification that the matter involves matters of general public importance
The issues raised had not been adjudicated upon by the Court of Appeal; the appeals were still pending in the Court of Appeal.
Costs
The Applicant shall bear the costs of all the Respondents in all the applications.
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.
this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules where there is neither an appeal, nor and intended appeal pending before the Supreme Court.
We thus agree with the Respondents that interlocutory applications filed under Rule 5(2)(b) are not appeals as envisaged by Article 164(3) of the Constitution.
Key timeline
#Practical implications
#Jurisdiction trap for interlocutory appeals
When appealing a Court of Appeal stay order under Rule 5(2)(b), you cannot go directly to Supreme Court unless you have a pending main appeal there. Ensure you first exhaust the Court of Appeal process or show the order pre-empts the main appeal. Otherwise, your notice of appeal will be struck out and you may face costs.
Stay orders remain in force during appeal
If you obtain a stay of a High Court ruling from the Court of Appeal, that stay is not immediately appealable to the Supreme Court. The other party cannot bypass the Court of Appeal. This gives businesses certainty that interim relief will last until the main appeal is decided, protecting your operations from sudden changes.
Challenging government regulations: procedural hurdles
If you win a case against a government regulation, the government can get a stay from the Court of Appeal. You cannot quickly go to the Supreme Court to lift that stay. You must wait for the Court of Appeal to hear the main appeal. This can delay implementation of your High Court victory, so plan for a longer timeline.
Frequently asked questions
#Can I appeal a Court of Appeal stay order directly to the Supreme Court in Kenya?+
No, unless you have a main appeal already pending before the Supreme Court. The Supreme Court only hears final appeals, not interim orders like stays under Rule 5(2)(b). You must wait for the Court of Appeal to decide the main case first.
What is a preliminary objection on jurisdiction in Kenya?+
It is a legal argument that the court has no power to hear a case. It must be based on a pure point of law, not disputed facts. In this case, SICPA successfully argued that the Supreme Court lacked jurisdiction to hear the appeal from an interlocutory order.
How long does a stay of execution last in Kenya?+
A stay granted by the Court of Appeal under Rule 5(2)(b) lasts until the main appeal is decided. It cannot be immediately challenged in the Supreme Court. The party who lost the stay must wait for the Court of Appeal to rule on the substantive appeal.
What is the effect of Legal Notice No. 53 of 2017 after this Supreme Court ruling?+
The High Court had declared it null and void, but the Court of Appeal stayed that declaration. The Supreme Court refused to hear an appeal against the stay. So the legal notice remains suspended pending the Court of Appeal's final decision on the main appeal.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others[2023] KESC 69 (KLR)8 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others", Case Analysis (2019). Application 15 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/28/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.