[2010] KECA 434 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLICATION NO. 308 OF 2008

REPUBLIC OF KENYA …………..……...……………………..………….1ST APPLICANT

KENYA WATER PROJECT SOCIETY …..…..……………………..…….2ND APPLICANT

ALBERT K. KARIUKI ……………..…………………..…………….…… 3RD APPLICANT

SAMUEL N. IRERI …………………..……………………..……….…….. 4TH APPLICANT

DAVID WACHIRA WAMBUGU ………..……………….…………...…… 5TH APPLICANT

AND

WATER APPEALS BOARD ……………..…………………………….1ST RESPONDENT

NGANDORI NGINDA WATER CONSUMER SOCIETY …..................2ND RESPONDENT

GICHOVI MUGERA ……………………………….………………......3RD RESPONDENT

ELIJAH KATHURI ……………....………………....……………..........4TH RESPONDENT

(Application for leave to amend the notice of motion in an application dated 28th November, 2008 and for leave to file a supplementary affidavit to that application for a stay of execution of the ruling of the High Court of Kenya at Embu (Karanja, J)dated 20th November 2008

in

H.C.MISC.APP.NO. 43 OF 2008

***********

RULING OF THE COURT

The genesis of this matter is an ex-parte application for leave in the superior court seeking orders of certiorari against several respondents. The superior court (Kasango, J) on 13th August, 2008 granted an order for leave to file a judicial review application seeking orders of certiorari but declined to order that the order for leave operates as stay of the challenged decision. The applicants did not as per Order 53 immediately file the application seeking substantive orders of certiorari in terms of the order granting leave. Instead on 27th August 2008 they filed an application for review of the order granting leave which application was expressed to be brought under Order 44 rule 1 & 2 and Order 53 rules 1 and 2 of the Civil Procedure Rules. Stated briefly, the applicants sought to review the said order denying stay on the ground that since the date of the order, a new and important matter had emerged, namely that by a letter dated 21st August 2008 an entity known as Tana Water Services Board had threatened to disconnect the water supply to the applicants by 30th September, 2008. By a ruling dated 20th November 2008, the superior court (Karanja, J) dismissed the application. The application before us seeks to stay execution of the said ruling. The learned counsel Mr Maurice Muli Nzavi represented the applicants and Mr Njeru Ithiga, represented second to fourth respondents.

The principal grounds raised by the applicants are set out in paragraph 4,5,6,7,8 and 9 of the affidavit in support of the application as follows:-

“5 that it is upon this refusal to grant orders of stay that the intended appeal will seek to (sic) obtain.

6. That pending filing of the intended appeal I beseech the court to grant stay of execution.

7. That, if execution proceeds the intended appeal will be rendered nugatory and also render the pending main motion of certiorari at the High Court equally nugatory.

8. That if execution proceeds the applicants and its membership which exceeds 1000 households, secondary school, coffee factories, churches, markets, dispensaries, dairy farms with over 20,000 livestock stands to perish(sic) all this covers 3 locations (ie) Ngandori and Mbeti North Locations in Embu District hence a matter of great importance and concern.

9. That (sic) threat of execution have been lodged (attached is a letter dated 21st August, 2008 marked MMN 2).

We have considered rival submissions and the contents of affidavits filed by the parties. The letter dated 21st August 2008 is written on the notepaper of Tana Water Services Board which entity is not a respondent in the application before us. It is also clear from the record that the said entity was not a party in the judicial review proceedings pending in the superior court. The aforesaid letter, as material, states:-

“Both Gatituri and Kiang’ao sublocations in Mbeti North location, which were formerly served by EWASCO, are now to be served by Ngandori Nginda Water Consumers Association. The consumers should apply directly to Ngandori Nginda Water Consumers Association for connection as individuals later by 30th September, 2008 after which those who would not have done so will be disconnected forthwith without further reference to them.”

It was clear to us that the letter contains the alleged decision which is the subject matter of the pending judicial review application in the superior court and that so far no decision has been made by the superior court capable of being stayed by this Court. The decision of the superior court declining to order that the leave granted operates as stay, is itself not capable of being executed since it is not a positive order and consequently the application falls outside the ambit of rule 5(2)(b) of the Court Rules. In addition it is clear to us that the decision the applicants want us to stay was made by the Tana Water Services Board and not the High Court. That decision prima facie, falls outside the jurisdiction of this Court.

Section 3 of the Appellate Jurisdiction Act Chapter 9 of the Laws of Kenya states:-

“3(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law.

The application is incompetent and the same is struck out with costs to the respondent.

It is so ordered.

DATED and delivered at Nairobi this 12th day of February, 2010.

S.E.O. BOSIRE

………………….

JUDGE OF APPEAL

E.M. GITHINJI

…………..……..

JUDGE OF APPEAL

J.G. NYAMU

………...……….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR