[2019] KESC 39 (KLR)
The Supreme Court held that it lacked jurisdiction to entertain the application for stay of execution because there was no appeal pending before it, nor had the applicant sought or obtained certification to appeal as required under Article 163(4)(b) of the Constitution. The Court emphasized that the grant of stay...
Source-derived case information.
- Citation
- [2019] KESC 39 (KLR)
- Parties
- Applicant: Invollate Wasike Siboe; Respondent: Kenya Railways Corporation; Respondent: The Hon Attorney General
- Court
- Supreme Court
- Court Station
- Supreme Court of Kenya
- Jurisdiction
- Kenya
- Case Number
- Application 9 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Certification to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Invollate Wasike Siboe
Applicant
Kenya Railways Corporation
Respondent
The Hon Attorney General
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the Supreme Court has jurisdiction to grant a stay of execution where no appeal has been filed.
- 2 Whether certification to appeal is a prerequisite for the grant of stay orders under Article 163(4)(b) of the Constitution.
Ratio Decidendi
The Supreme Court held that it lacked jurisdiction to entertain the application for stay of execution because there was no appeal pending before it, nor had the applicant sought or obtained certification to appeal as required under Article 163(4)(b) of the Constitution. The Court emphasized that the grant of stay orders is contingent upon the existence of a pending appeal or the grant of leave to appeal. In the absence of these prerequisites, the application was incompetent and could not be entertained. The Court further noted that the application was an attempt to prolong the applicant's stay on the premises without a substantive basis in law.
Court Disposition
application dismissed
Orders
- The Application dated 15th May, 2017 is hereby disallowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
Siboe v Kenya Railways Corporation & another (Application 9 of 2017) [2019] KESC 39 (KLR) (30 April 2019) (Ruling)
Invollate Wasike Siboe v Kenya Railways Corporation & another [2019] eKLR
Neutral citation: [2019] KESC 39 (KLR)
Republic of Kenya
In the Supreme Court of Kenya
Application 9 of 2017
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
April 30, 2019
Between
Invollate Wasike Siboe
Applicant
and
Kenya Railways Corporation
1st Respondent
The Hon Attorney General
2nd Respondent
((Being an application for stay of the Judgment and Orders of the Court of Appeal in Civil Appeal No. 157 of 2014 (Makhandia, Ouko & M’Inoti, JJ.A) delivered on 24th March, 2017 Civil Appeal 157 of 2014 )
Ruling
1. Upon perusing the Notice of Motion Application dated 15th May, 2017 and filed on 19th May, 2017 for stay of execution against the Judgment and Orders of the Court of Appeal of 24th March, 2017 in Civil Appeal No. 157 of 2014 and predicated on the provisions of Articles 159(2)(a), (d) & (e), 163(4) and 259(1) of the Constitution, 2010; and
2. Upon reading the undated supporting affidavit of the applicant and a further supplementary affidavit sworn on 15th March, 2018 and filed on 16th March, 2018; and
3. Upon considering the written submissions by the applicant dated 29th May, 2017 wherein it is urged that:(i)This Court is vested with jurisdiction to grant the interlocutory Orders sought under Sections 21 and 24(1) & (4) of the Supreme Court Act, 2011;(ii)that the intended appeal involves a matter of general public importance; and(iii)The application for stay satisfies the conditions set out by this Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others; Application No. 5 of 2014.
4. Upon reading the 1st respondent’s replying affidavit sworn on 23rd February, 2018 and filed on 8th March, 2018 and considering the written submissions of even date, wherein it is contended that:(i)The application is fatally defective since the applicant has not sought certification to appeal from the Court of Appeal or this Court;(ii)The orders sought cannot be granted in a vacuum since there is no pending appeal the substratum of which is sought to be preserved; and(iii)The application is merely intended to prolong the applicant’s stay on the premises, there being no arguable appeal
5. We have considered the application and response thereto and by unanimous decision of this Bench, pursuant to the provisions of Section 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules 2012; we make the following Orders:Orders Reasons
1. The Application dated 15th May, 2017 is hereby disallowed. (i)This Court lacks jurisdiction to entertain the Application herein, there being no appeal on the basis of which a stay can be granted.(ii) Although the application is predicated upon the provisions of Article 163(4)(b), no certification to appeal has been sought and granted either by the Court of Appeal or the Supreme Court.
2. No Orders as to Costs
DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL, 2019. ........................M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT..............................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..............................S. C. WANJALAJUSTICE OF THE SUPREME COURT..............................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT..............................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR, SUPREME COURT