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Case Brief · caselaw.co.ke
Supreme CourtAllowedCivil Application 13 of 2018

Alfred Nganga Mutua v Independent Electoral and Boundaries Commission & 3 others

Supreme Court of Kenya
26 June 2018
1,035 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Supreme Court stopped nullification of Machakos governor's election pending appeal.

What this practically means

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After Governor Alfred Mutua's election was nullified by a lower court, he appealed to the Supreme Court and asked for a stay. The Supreme Court granted the stay, meaning the nullification order cannot be enforced until the appeal is heard. The court also blocked the IEBC from declaring the seat vacant, stopped the Speaker from becoming governor, and prevented any by-election in the meantime. This ensures the appeal is not made pointless.

Executive summary

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This was an application by Alfred Nganga Mutua, the Governor of Machakos County, seeking a stay of execution against a judgment and decree delivered on June 8, 2018, which nullified the Machakos gubernatorial elections. The applicant also sought conservatory orders restraining the Independent Electoral and Boundaries Commission (IEBC) from certifying the gubernatorial seat vacant, restraining the Speaker of the County Assembly from assuming the office of Governor, and restraining the IEBC from announcing or conducting gubernatorial elections in Machakos County, all pending the hearing and determination of his appeal. The Supreme Court, after considering the material lodged by both parties, including the applicant's certificate of urgency, supporting affidavits, and written submissions, as well as the respondents' replying affidavit and submissions, held that the subsequent determination of the case by the Court must not be prejudiced. To uphold the authority of the Court and to secure ends of justice, the Court granted the application in its entirety. It issued a stay of execution against the judgment and decree of June 8, 2018, and conservatory orders as sought by the applicant. The costs of the application were ordered to abide the disposal of the main cause. The judgment was delivered by a unanimous bench of five judges.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant was entitled to a stay of execution of the judgment nullifying the Machakos gubernatorial elections pending hearing and determination of an appeal challenging the said judgment

Key legal issues

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01

Whether the applicant was entitled to a stay of execution of the judgment nullifying the Machakos gubernatorial elections pending hearing and determination of an appeal challenging the said judgment.

Holding

The court granted the stay and conservatory orders to prevent prejudice to the eventual determination of the appeal and to uphold the authority of the court and secure ends of justice.

Reasoning

The court considered the material lodged by both parties, including the applicant's certificate of urgency, supporting affidavit, further affidavit, and written submissions, as well as the respondents' replying affidavit, written submissions, and bundle of authorities. Based on this material, the court concluded that the subsequent determination of the case by the Supreme Court must not be prejudiced. To uphold the authority of the court and to secure ends of justice, the court issued a stay of execution against the judgment and decree of June 8, 2018, and conservatory orders restraining the 1st respondent from certifying the gubernatorial seat vacant, the Speaker from assuming office as Governor, and the 1st respondent from announcing or conducting gubernatorial elections, all pending the hearing and determination of the appeal.

Legal principles established

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  • A stay of execution pending appeal must prevent prejudice to the eventual determination of the case.
  • The court's authority to grant a stay is exercised to uphold its own authority and secure the ends of justice.
  • Conservatory orders can be issued to preserve the subject matter of an appeal, such as a political office.
  • The court considers material from both parties, including affidavits and submissions, before granting a stay.
  • A stay is discretionary and aimed at balancing the interests of both sides pending final determination.

Court orders

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  1. 1.A stay of execution issued against the Judgment and Decree of June 8, 2018 pending the hearing and determination of the case.
  2. 2.A conservatory order issued restraining the 1st Respondent from certifying the gubernatorial seat of Machakos County vacant pending the hearing and determination of the appeal.
  3. 3.A conservatory order issued against the Speaker of the County Assembly of Machakos County, from assuming the office of Governor of that County, pending the hearing and determination of the appeal.
  4. 4.A conservatory order issued restraining the 1st Respondent from announcing or conducting gubernatorial elections in Machakos County pending the hearing and determination of the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya (implied by the nature of the appeal from the Court of Appeal to the Supreme Court in an election matter)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the subsequent determination of the case by this Court, must not be prejudiced – to uphold the authority of the Court, and to secure ends of justice.
p. 3 Stay of execution pending appeal
There shall be a stay of execution against the Judgment and Decree of 8 June 2018 pending the hearing and determination of the case.
p. 3 Final orders - stay of execution
We hereby issue a conservatory Order restraining the 1st Respondent from certifying the gubernatorial seat of Machakos County vacant pending the hearing and determination of the appeal.
p. 3 Final orders - conservatory order
We also issue a conservatory Order against the Speaker of the County Assembly of Machakos County, from assuming the office of Governor of that County, pending the hearing and determination of the appeal.
p. 3 Final orders - conservatory order
We likewise issue a conservatory Order restraining the 1st Respondent from announcing or conducting gubernatorial elections in Machakos County pending the hearing and determination of the appeal.
p. 3 Final orders - conservatory order
The costs of this application shall abide the disposal of the main cause.
p. 3 Costs order

Key timeline

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2018-06-08
High Court nullifies the Machakos gubernatorial election, declaring Governor Mutua's victory invalid.
Shortly after June 8, 2018
Governor Mutua files an appeal and an application for stay of execution at the Supreme Court.
2018
Supreme Court grants stay of execution and conservatory orders, halting implementation of the nullification pending appeal.

Practical implications

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For lawyers

Stay applications: show prejudice to appeal

When seeking a stay of execution pending appeal, your submissions must clearly demonstrate that without the stay, the appeal will be rendered nugatory. The Supreme Court here emphasized that the subsequent determination of the case must not be prejudiced. Use this precedent to argue that preserving the status quo is essential to uphold the court's authority and ensure justice.

For businesses

Political uncertainty affects investment

Businesses in Machakos should note that the stay delays any change in county leadership until the appeal is heard. This reduces uncertainty for investors and contractors who rely on stable county government. However, prolonged election disputes can still chill business confidence. Monitor the appeal timeline and prepare for potential shifts in policy or procurement depending on the outcome.

For individuals

Your vote may be contested, but safeguards exist

If you are a voter, know that election results can be challenged in court. This case shows that even after a nullification, the winner can stay in office while appealing. The Supreme Court's orders protect the will of voters from being overturned prematurely. However, the final outcome depends on the appeal. Stay informed and participate in any subsequent by-election if the nullification is upheld.

Frequently asked questions

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What is a stay of execution in Kenya?+

A stay of execution is a court order that temporarily stops the enforcement of a judgment while an appeal is being decided. It prevents the winning party from acting on the judgment until the higher court rules on the appeal. In election cases, this can stop a nullification from taking effect immediately.

What happened in the Mutua v IEBC case in Kenya?+

Governor Alfred Mutua's election was nullified by a lower court. He appealed to the Supreme Court and asked for a stay. The Supreme Court granted the stay, meaning the nullification order is suspended. The IEBC cannot declare the seat vacant, and no by-election can be held until the appeal is heard.

Can a governor stay in office after election nullification in Kenya?+

Yes, if the Supreme Court grants a stay of execution pending appeal. In this case, the court allowed Governor Mutua to remain in office while his appeal is heard. The stay prevents the nullification from taking effect until the final decision on appeal.

How long does a stay of execution last in Kenya?+

A stay of execution lasts until the appeal is heard and determined. In this case, the Supreme Court issued the stay pending the hearing and determination of the appeal. It does not have a fixed end date; it remains in effect until the court rules on the appeal or lifts the stay.

Cite this brief

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Cite this brief

Caselaw, "Alfred Nganga Mutua v Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2018). Civil Application 13 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/43/eng@2018-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.