[2011] KECA 307 (KLR)
The Court of Appeal held that the application for stay was improper because granting a stay of the High Court's refusal to grant stay would effectively amount to granting the very order that was rejected by the High Court, thereby pre-empting the outcome of the intended appeal. The court emphasized that the...
Source-derived case information.
- Citation
- [2011] KECA 307 (KLR)
- Parties
- Applicant: The Registered Trustees of the Catholic Diocese of Machakos; Respondent: The Registrar of Titles, Nairobi; Respondent: The Hon. The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 3 of 2011
- Procedural Posture
- Stay Application / Ruling on Interlocutory Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- J Wakiaga
- Legal Topics
- Stay of Execution, Judicial Review, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Registered Trustees of the Catholic Diocese of Machakos
Applicant
The Registrar of Titles, Nairobi
Respondent
The Hon. The Attorney General
Respondent
Procedural Posture
Stay Application / Ruling on Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the Court of Appeal should grant a stay of the High Court's refusal to grant stay pending the determination of the intended appeal.
- 2 Whether granting the stay would amount to granting the substantive order refused by the High Court before the appeal is heard.
Ratio Decidendi
The Court of Appeal held that the application for stay was improper because granting a stay of the High Court's refusal to grant stay would effectively amount to granting the very order that was rejected by the High Court, thereby pre-empting the outcome of the intended appeal. The court emphasized that the interlocutory application did not meet the threshold for granting such relief, as it would undermine the appellate process and the principle that substantive orders should not be granted at the interlocutory stage. The court acknowledged the existence of weighty issues of fact and law, as well as the need to balance public and private interests, but found that these considerations did...
Court Disposition
application dismissed with costs
Orders
- The application for stay is dismissed with costs as proposed in the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: WAKI, VISRAM & NYAMU, JJ.A)
CIVIL APPLICATION NO. NAI. 3 OF 2011 (UR. 3/2011)
BETWEEN
THE REGISTERED TRUSTEES OF THECATHOLIC DIOCESE OF MACHAKOS.....APPLICANT
AND
THE REGISTRAR OF TITLES, NAIROBI ...........................................................1ST RESPONDENT
THE HON. THE ATTORNEY GENERAL ............................................................2ND RESPONDENT
(An application for stay of the 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 10th December, 2010
in
H. C. Misc. Civil Appl. No. 218 of 2010)
******************
RULING OF WAKI, JA
I have perused the draft Rulings of my brothers Visram and Nyamu, JJ.A and I am grateful for that opportunity. I agree with Nyamu JA that there are weighty issues of fact and law which not only lie before the superior court awaiting consideration in the Judicial Review application but will also arise before the appellate court in the intended appeal. There will also be issues of public and private interests to be balanced. But the issue before us is fairly limited and that is whether the interlocutory application before us is proper. 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. In that sense I have sympathy for the course taken by my brother Visram JA which I am inclined to agree with.
In the result the final order would be as proposed by Visram JA for dismissal of the application with costs as proposed therein.
Dated and delivered at Nairobi this 18th day of March, 2011.
P. N. WAKI
................................
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR