Case Metadata |
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Case Number: | Petition 486 of 2013 |
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Parties: | Nairobi Metropolitan Psv Saccos Union Limited, Mt. Kenya Matatu Owners Association, Chania Travellers Co-Operative Savings and Credit Socity Limited, Indima (Nje) Cooperative Savings and Credit Society Limited, Kukena Savings and Credit Cooperative Society Limited, Thika Road Transporters Sacco Limited, Thika Travellers Choice Sacco Ltd, Runa Travellers Choice Sacco Ltd, Narugi Development Sacco Ltd, Kangema Travellers Co-operative Saving and Credit Society, Nanyuki Express Cabs Services Sacco, Nuclear Investments Ltd, Murang'a Shuttle Services Ltd, Namukika Sacco Limited, Namukika Sacco Ltd, Neno Sacco Ltd, Meru Nissan Operators Sacco Society Limited, Mtn Sacco Ltd, Ntk Travel Services Multipurpose Cooperative Society Limited, Kiambu Marafiki Matatu Sacco Ltd (Kiambu Sacco Ltd), Kaka Travellers Cooperative Savings and Credit Cooperative Society Limited, Kamuna Saaco Ltd, Mwiki Psv Savings and Credit Cooperative Society Limited, Eastleigh Route Savings and Credit Cooperative Society Limited, Ngumba Travellers Savings and Credit Cooperative Society Limited, Dandora Usafiri Travellers Savings and Credit Co-Operative Society Limited v County of Nairobi Government, Nairobi City County Board, Transition Authority, Attorney General |
Date Delivered: | 28 Jan 2014 |
Case Class: | Civil |
Court: | High Court at Nairobi (Milimani Law Courts) |
Case Action: | Ruling |
Judge(s): | Isaac Lenaola |
Citation: | Nairobi Metropolitan Psv Saccos Union Limited & 24 others v County of Nairobi Government & 3 others [2014]eKLR |
Advocates: | Mr. Kinyanjui for Petitioners Mr. Okoth holding brief for Prof. Ojienda for 1st and 2nd Respondents |
Court Division: | Civil |
County: | Nairobi |
Advocates: | Mr. Kinyanjui for Petitioners Mr. Okoth holding brief for Prof. Ojienda for 1st and 2nd Respondents |
History Advocates: | Both Parties Represented |
Case Outcome: | Allowed |
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 HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.486 OF 2013
BETWEEN
NAIROBI METROPOLITAN PSV SACCOS
UNION LIMITED....................................................1ST PETITIONER
MT. KENYA MATATU OWNERS
ASSOCIATION.........................................................2ND PETITIONER
CHANIA TRAVELLERS CO-OPERATIVE SAVINGS
AND CREDIT SOCITY LIMITED...............................3RD PETITIONER
INDIMA (NJE) COOPERATIVE SAVINGS
AND CREDIT SOCIETY LIMITED.............................4TH PETITIONER
KUKENA SAVINGS AND CREDIT COOPERATIVE
SOCIETY LIMITED..................................................5TH PETITIONER
THIKA ROAD TRANSPORTERS
SACCO LIMITED.....................................................6TH PETITIONER
THIKA TRAVELLERS CHOICE
SACCO LTD.............................................................7TH PETITIONER
RUNA TRAVELLERS CHOICE
SACCO LTD.............................................................8TH PETITIONER
NARUGI DEVELOPMENT
SACCO LTD.............................................................9TH PETITIONER
KANGEMA TRAVELLERS CO-OPERATIVE
SAVING AND CREDIT SOCIETY.............................10TH PETITIONER
NANYUKI EXPRESS CABS
SERVICES SACCO..................................................11TH PETITIONER
NUCLEAR INVESTMENTS LTD..............................12TH PETITIONER
MURANG'A SHUTTLE
SERVICES LTD.......................................................13TH PETITIONER
NAMUKIKA SACCO LIMITED................................14TH PETITIONER
NAMUKIKA SACCO LTD........................................15TH PETITIONER
NENO SACCO LTD................................................16TH PETITIONER
MERU NISSAN OPERATORS SACCO
SOCIETY LIMITED................................................17TH PETITIONER
MTN SACCO LTD..................................................18TH PETITIONER
NTK TRAVEL SERVICES MULTIPURPOSE COOPERATIVE SOCIETY LIMITED........................19TH PETITIONER
KIAMBU MARAFIKI MATATU SACCO LTD
(KIAMBU SACCO LTD)..........................................20TH PETITIONER
KAKA TRAVELLERS COOPERATIVE SAVINGS AND CREDIT COOPERATIVE SOCIETY
LIMITED................................................................21ST PETITIONER
KAMUNA SAACO LTD...........................................22ND PETITIONER
MWIKI PSV SAVINGS AND CREDIT COOPERATIVE SOCIETY LIMITED....................................23RD PETITIONER
EASTLEIGH ROUTE SAVINGS AND CREDIT COOPERATIVE SOCIETY LIMITED...............................24TH PETITIONER
NGUMBA TRAVELLERS SAVINGS AND CREDIT COOPERATIVE
SOCIETY LIMITED..............................................25TH PETITIONER
DANDORA USAFIRI TRAVELLIERS SAVINGS AND CREDIT CO-OPERATIVE SOCIETY LIMITED...........................26TH PETITIONER
AND
COUNTY OF NAIROBI GOVERNMENT...................1ST RESPONDENT
NAIROBI CITY COUNTY BOARD..........................2ND RESPONDENT
THE TRANSITION AUTHORITY............................3RD RESPONDENT
THE HONOURABLE ATTORNEY GENERAL..........4TH RESPONDENT
RULING
Introduction
“(a) …..............
(b) That there be a stay of execution of the contents of Paragraph 6.1 of the Schedule to the Nairobi County Government Finance Act, 2013 until the hearing and determination of this application, or as the Court may direct.
(c) That there be a stay of execution of the contents of Paragraph 6.1 of the Schedule to the Nairobi County Government Finance Act, 2013 until the hearing and determination of the Applicant's intended Appeal, or until such specified as this Court may Order.
(d) That the costs of this Application be provided for.”
“1) In a judgment delivered on 18th December 2013, this Honourable Court already determined that Schedule 6.1 of the Nairobi City County Finance Act 2013 (“the impugned legal provision”) is Constitutional. The Court is functus officio on enforceability of the impugned legal provision;
2) The Petitioner's Application is a surreptitious attempt to have this Honourable review, on unknown grounds, its judgment herein delivered on 18th December 2013;
3) In dismissing the Petition herein, there is no positive order that this Honorable court made capable of execution;
4) It is trite law as repeatedly held in, inter alia, the following Court of Appeal decisions, that a dismissal order, being a negative order, is incapable of stay of execution, neither can implementation of an impugned decision be stayed where a Court dismisses a suit challenging the decision, to wit;
a) F & S Scientific Limited versus Kenya Revenue Authority & Another, Civil Application No. Nai.26 of 2012 [2013] eKLR;
b) Shimmers Plaza Limited vers National Bank of Kenya Ltd. Civil Application No. Nai.38 of 2013; and
c) Republic versus Kenya Wildlife Services & 2 Others, Civil Application No.Nai 12 of 2007
5) The balance of convenience tilts in favour of dismissing the Application.”
The Petitioners' case
Respondents' submission
Findings
“Whether or not an appeal would be rendered nugatory is not a consideration in an application for stay of execution pending appeal before the High Court. That standard is only considered by Court of Appeal.”
I am duly guided and I will only add that looking at the grounds relied upon by the Petitioners, they are actually grounds of appeal as they deal with substantive issues to be raised in the appeal yet to be filed. This Court cannot therefore pronounce its finding in that regard and for obvious reasons.
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless-
(a) The Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
“In Rasiklal Somabhai Patel v Parklands Properties Ltd the Court said that before it could decide the application (for stay of execution) it must have regard to the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules under which the Applicant had to satisfy the Court of two matters application is granted, which prima facie means that if the appeal succeeds, the Respondent would not be in a position to make full restitution. Secondly, the Applicant had to give such security as the Court may order. Those are the requirements under Order XLI Rule 4(2) of the Civil Procedure Rules but that order mainly governs applications before the superior Court and not those to this Court,. Although in sub-rule (1) of the same Rule reference is made to the Court to which the appeal is preferred.
“We reiterate that the Applicant sought in the High Court, the orders of certiorari, prohibition and mandamus. All the High Court did after hearing the arguments was to dismiss the motion with no orders as to costs. Asking for “stay of implementation” of a decision by the Respondent is tantamount to asking for either stay of execution or an injunction. To begin with, in law, it is not possible to grant an order of stay of “execution” or “implementation” where the action has been dismissed. This is the view of this Court as expressed in many decisions. For instance in the case of Republic vs Kenya Wildlife Services & 2 Others, Civil Application No. Nai.12 of 2007 the Court said in part: “the Superior Court has not therefore ordered any of the parties to do anything or refrain from doing anything. There is therefore no positive order made by the Superior Court which can be the subject matter of the Application for injunction or stay ...”
In the present case, what I did was to dismiss the Petition dated 30/10/2013 and that Schedule 6.1 of the Nairobi Finance Act 2013 was held to be constitutional. What is there to stay? The Petitioners have not sought a stay of the judgment but seek stay of the “implementation” of Schedule 6.1 aforesaid. I issued no such order or decree in those terms and clearly, the application seeks what was not given or denied by Court.
“I have read the Application dated 18/12/2013 together with the Supporting Affidavit. I am also aware that this matter involves the powers of devolved Governments and their Assemblies. The Law in that regard is both new and also contested. Such law will only be settled in higher Courts than this one”
Despite my reservations about the Petitioner's Application and for reasons of fairness and balance noting the fact that the Respondents are being otherwise denied the fruits of a judgment they obtained a month ago, I will determine the Application before me by acceding to Mr. Kinyanjui's request and extending the orders of stay of the implementation of Schedule 6.1 of the Nairobi Finance Act, 2013 for seven (7) days only to enable appropriate orders to be obtained at the Court of Appeal. Upon expiry of those 7 days, whether or not such orders will have been obtained, this Court will become functus officio and all proceedings shall continue at the Court of Appeal.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 28TH DAY OF JANUARY, 2014
ISAAC LENAOLAJUDGE
In the presence of:
Irene – Court clerk
Mr. Kinyanjui for Petitioners
Mr. Okoth holding brief for Prof. Ojienda for 1st and 2nd Respondents
Order
Ruling duly delivered.
Proceedings to be supplied.
ISAAC LENAOLA
JUDGE