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|Case Number:||Application 9 of 2017|
|Parties:||Invollate Wasike Siboe v Kenya Railways Corporation & Attorney General|
|Date Delivered:||30 Apr 2019|
|Court:||Supreme Court of Kenya|
|Judge(s):||Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin C Wanjala, Susanna Njoki Ndungu|
|Citation:||Invollate Wasike Siboe v Kenya Railways Corporation & another  eKLR|
|Case History:||(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|
|History Docket No:||Civil Appeal No. 157 of 2014|
|History Judges:||Kathurima M'inoti, Milton Stephen Asike Makhandia, William Ouko|
Supreme Court has no jurisdiction to issue an order for stay of execution where there is no pending appeal
Invollate Wasike Siboe v Kenya Railways Corporation and another
Application No 9 of 2017
Supreme Court of Kenya
P M Mwilu, DCJ &V-P; M K Ibrahim, S C Wanjala, N Njoki, & I Lenaola, SCJJ
April 30, 2019
Reported by Ian Kiptoo
Civil Practice and Procedure-stay of execution-application for-where there was no pending appeal before a court-whether the Supreme Court had jurisdiction to issue an order for stay of execution where there was no pending appeal
Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters of general public importance-certification of appeals as matters of general public importance-where certification had not been sought or granted-whether the Supreme Court had jurisdiction to hear and determine an intended appeal, on a claim that it was of general public importance, where no certification had been sought and granted-Constitution of Kenya, 2010, article 163 (4) (b)
The application before the Court was for stay of the judgment and orders of the Court of Appeal. The applicant urged that the Court was vested with jurisdiction to grant the interlocutory orders under sections 21 and 24(1) & (4) of the Supreme Court Act, 2011; that the intended appeal involved a matter of general public importance; and that the application met the requirements for an application for stay.
The respondent contended that the application was fatally defective since the applicant had not sought certification to appeal from the Court of Appeal or the Supreme Court; that the orders sought could not be granted in a vacuum since there was no pending appeal the substratum of which was sought to be preserved; and that the application was merely intended to prolong the applicant’s stay.
Application disallowed; no orders as to costs.
1. Munya v Kithinji & 2 other  3 KLR 36- (Cited)
1. Constitution, 2010 articles 159(2)(a), (d) & (e); 163(4) ; 259(1) –(Interpreted)
2. Supreme Court Act, 2011 sections 21(2); 23(2) (b); 24(1) (4)-(Interpreted)
3. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 21, 23, 53 –(Interpreted)
|Case Outcome:||Application disallowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
(Coram: Mwilu; DCJ &V-P, Ibrahim, Wanjala, Njoki, & Lenaola, SCJJ)
APPLICATION NO. 9 OF 2017
INVOLLATE WASIKE SIBOE.........................................................................APPLICANT
1. KENYA RAILWAYS CORPORATION.............................................1ST RESPONDENT
2. THE HON. ATTORNEY-GENERALOF KENYA............................2ND RESPONDENT
(Being an application for stay of the Judgment and Orders of the Court of Appeal
Civil Appeal No. 157 of 2014 (Makhandia, Ouko & M’Inoti, JJ.A)
delivered on 24th March, 2017
RULING OF THE COURT
 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
 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
 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.
 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
 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:
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.
No Orders as to Costs
DATED and DELIVERED at NAIROBI this 30th day of April, 2019.
P. M. MWILU
DEPUTY CHIEF JUSTICE & VICE-PRESIDENT
OF THE SUPREME COURT
M. K. IBRAHIM S. C. WANJALA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPEME COURT
NJOKI NDUNGU I. LENAOLA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true copy
of the original
REGISTRAR, SUPREME COURT