Case ID:168579

Kenya Electricity Transmission Company Limited (Ketraco) v George Ngwena Obonyo & another [2020] eKLR

Case Metadata

Case Number:

Civil Appeal (Application) 142 of 2018

Parties:

Kenya Electricity Transmission Company Limited (Ketraco) v George Ngwena Obonyo & Peter Chieng’ Opiyo

Date Delivered:

04 Dec 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage

Citation:

Kenya Electricity Transmission Company Limited (Ketraco) v George Ngwena Obonyo & another [2020] eKLR

Case History:

(Being an application for stay of proceedings as against the decision of the Environment and

Land Court (Hon. S. M. Kibunja, J.) dated 2nd May 2018 in Kisumu ELC Suit No. 334 of 2016)

Court Division:

Civil

County:

Nairobi

History Docket No:

ELC Suit No. 334 of 2016)

History Judges:

Stephen Murigi Kibunja

History County:

Kisumu

Case Outcome:

Application dismissed

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

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: NAMBUYE, KOOME & KIAGE JJ.A.)

KISUMU CIVIL APPEAL (APPLICATION) NO. 142 OF 2018

BETWEEN

KENYA ELECTRICITY TRANSMISSION

COMPANY LIMITED (KETRACO)....................................................APPELLANT/APPLICANT

AND

GEORGE NGWENA OBONYO.......................................................................1

ST

RESPONDENT

PETER CHIENG’ OPIYO.................................................................................2

ND

RESPONDENT

(Being an application for stay of proceedings as against the decision of the

Environment and

Land Court (Hon. S. M. Kibunja, J.)

dated 2

nd

May 2018

in

Kisumu ELC Suit No. 334 of 2016)

***************************

RULING OF THE COURT

1.

UPON

perusing the Notice of Motion dated 21st November 2019 by the appellant/applicant brought under

Article 159

and

164(3)

of the Constitution of Kenya,

sections 3A

and

3B

of the Appellate Jurisdiction Act Cap 9 Laws of Kenya (L.O.K),

Rules 1(2), 5(2)(b

) of the Court of Appeal Rules and all other enabling provisions of the law, seeking an order that pending hearing and determination of the appeal in

Civil Appeal No. 142 of 2018

between

Kenya

Electricity Transmission Company Limited (KETRACO)

and

George Ngwena Obonyo

and

Peter Ochieng Opiyo

before this Court, a stay of the proceedings in

Kisumu Chief Magistrate’s Court CMELC No. 252 of 2018

between

George Ngwena Obonyo

and

Peter Ochieng Opiyo vs. Kenya

Electricity Transmission Company Limited (KETRACO)

; an order that this Court be pleased to make such further and or other orders as it may deem just, fair, reasonable and appropriate in the circumstances to expedite the hearing of Civil Appeal No. 142 of 2018 between

Kenya Electricity

Transmission Company Limited (KETRACO

) and

George Ngwena Obonyo

and

Peter Ochieng Opiyo

in order for the ends of justice to be met; an order that costs of and incidental to this application do abide the outcome of the said appeal.

2.

UPON

perusing the grounds in the body of the application and the affidavit of

Samuel Kerubo

, the senior legal officer of the applicant herein sworn on 21st November 2019 in support of the application together with annextures thereto; and

3.

UPON

noting that the application is not opposed; and

4.

HAVING

considered the principles that guide the Court in the exercise of its mandate under the constitutional and statutory provisions of law and the Rules of this Court cited by the applicant for accessing the reliefs sought as variously enunciated by this Court and the Supreme Court of Kenya in

Jaldesa Tuke Dabelo vs. IEBC & Another [2015] eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others [2013] eKLR; Patricia Cherotich Sawe vs. IEBC & 4 Others [2015]eKLR

among numerous others for the invocation and application of the non-technicality principle in

Article

159(2)(d)

of the Constitution; the cases of

Equity Bank Limited vs. West Link Mbo Limited [2013]eKLR;

Kenya Power & Lighting Company Limited versus Benzene Holdings Limited t/a Wyco Paints [2016] eKLR;

and

Board of Governors, Moi High School, Kabarak & Another vs.

Malcolm Bell [2013]eKLR

;

among others on the parameters governing the invocation and application of the inherent power of the Court enshrined in

rule 1(2)

of the rules of this Court; the case of

City Chemist

(NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs

.

Orient Commercial Bank Limited [2008]eKLR

and

Kariuki Network Limited & Another vs. Daly & Figgis Advocates [2009]eKLR

on the parameters for the invocation and application of the overriding objective principle enshrined in

sections 3A

and

3B

of the

Appellate Jurisdiction Act

; the case of

Stanley Kang’ethe Kinyanjui vs.

Tony Ketter & Others [2013]eKLR

on the principles that guide this Court in the determination of

rule 5(2)(b

) applications which in our view is the substantive provision for accessing the substantive relief sought in the application under consideration; the case of

Owners of the Motor Vessel

“Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1

for the principle that jurisdiction is everything and without it a court of law has no mandate dealing with a matter and has to down tools the moment it dawns on it that it has no jurisdiction; the case of

Kamau Macharia & Another vs. Kenya Commercial

Bank & 2 Others [2012]eKLR

for the proposition that a Court’s jurisdiction flows from the Constitution or legislation or both; the case of

Titus Mwinzi Kitaka & 5 Others vs. The District Commissioner Mbeere & 3 Others [2020]eKLR

for the proposition that there is nothing in the constitutional mandate of a court of law that would permit such a court of law to go against clear provisions of the law;

section 3

of the

Appellate Jurisdiction Act

, Cap 9 of the Laws of Kenya and

Article 164(3)

of the Kenya Constitution 2010 both on the mandate of the Court, all of which we fully adopt; and

5.

HAVING

applied the above cumulative thresholds and their respective principles of law to the applicant’s application, we find the same incompetent for want of jurisdiction in this Court to stay an order of a Magistrate’s Court; and

6.

HAVING

arrived at the above conclusion on the application, we make orders as follows:

(i) The applicant’s application dated 21

st

November 2019 is accordingly struck out for want of jurisdiction.

(ii) There will be no order for costs as the application was undefended.

Dated and Delivered at Nairobi this 4

th

day of December, 2020.

R. N. NAMBUYE

....................................

JUDGE OF APPEAL

M. K. KOOME

....................................

JUDGE OF APPEAL

P. O. KIAGE

..................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR