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Supreme CourtAllowedPetition 18 (E025) of 2021

Commission v Oduor & 4 others

Supreme Court of Kenya
19 May 2022
966 words in judgment
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AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Supreme Court halts Court of Appeal ruling on judicial vetting pending full appeal hearing.

What this practically means

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The Supreme Court has temporarily stopped a Court of Appeal decision about the Judges and Magistrates Vetting Board. The Chief Justice argued the appeal raises a serious legal question: whether the Constitution blocks the High Court from reviewing the Board's decisions. The Supreme Court agreed this issue is worth arguing and that enforcing the ruling now could make the appeal pointless. The Court also gave extra time to file the necessary court order.

Executive summary

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This ruling by the Supreme Court of Kenya (5-judge bench, unanimous) determined an application by the Honourable the Chief Justice & Another for stay of execution and extension of time. The application sought to stay the Court of Appeal's judgment of 22 October 2021 in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018, and to extend time to file the sealed order from that judgment. The Court applied the established principles for stay of execution from Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell and Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, requiring that the intended appeal be arguable and not frivolous, and that the appeal would be rendered nugatory without a stay. The Court found the intended appeal arguable because it challenges the Court of Appeal's decision on whether Section 23(2) of the Sixth Schedule to the Constitution ousts the High Court's jurisdiction to review decisions of the Judges and Magistrates Vetting Board. The Court also found that the appeal would be rendered nugatory due to the risk of respondents enforcing the order and seeking benefits. On extension of time, the Court applied the principles from Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 others and granted a 7-day extension. The Court allowed the application in full, stayed execution of the Court of Appeal decision pending appeal, and ordered each party to bear its own costs.

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 has met the threshold for grant of stay of execution pending appeal.
  2. 2.Whether the applicant should be granted extension of time to file the sealed order from the Court of Appeal.

Key legal issues

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01

Whether the intended appeal is arguable and not frivolous.

Holding

The intended appeal is arguable because it challenges the Court of Appeal's decision on whether Section 23(2) of the Sixth Schedule to the Constitution ousts the High Court's jurisdiction to review decisions of the Judges and Magistrates Vetting Board.

Reasoning

The Court found that the applicant's intended appeal raises a pertinent issue regarding the jurisdiction of the High Court to determine the respondents' petitions, specifically whether Section 23(2) of the Sixth Schedule to the Constitution ousts that jurisdiction. This issue is properly before the Supreme Court for determination and is not frivolous.

02

Whether the appeal will be rendered nugatory if stay is not granted.

Holding

The appeal will be rendered nugatory because there is a high likelihood that the respondents may enforce the Court of Appeal order and seek to draw all previous benefits, which would undermine the appeal.

Reasoning

The Court accepted the applicant's apprehension that the respondents may re-engage the Judiciary and seek to draw all previous benefits if the stay is not granted. This apprehension was deemed valid, and the Court concluded that the appeal would be rendered nugatory without a stay.

03

Whether the applicant should be granted extension of time to file the sealed order.

Holding

The request for extension of time is merited and warrants exercise of judicial discretion as the applicant has satisfied the principles for extension of time.

Reasoning

The Court noted that it has jurisdiction to extend time as a matter of judicial discretion under Rule 15(2) of the Supreme Court Rules, 2020. The applicant satisfied the principles set out in Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 others, and therefore the extension was granted.

Legal principles established

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  • To get a stay of execution, the appeal must be arguable and not frivolous.
  • A stay is granted if without it the appeal would be rendered nugatory.
  • The Supreme Court has discretion to extend time for filing court orders.
  • Extension of time requires satisfying principles from the Nicholas Kiptoo Korir Salat case.
  • A valid fear that the other side will enforce a judgment can make an appeal nugatory.

Court orders

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  1. 1.The execution of the decision of the Court of Appeal (Okwengu, Kiage & Kantai, JJ. A) in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018 delivered on 22nd October, 2021 be and is hereby stayed pending the hearing and determination of the appeal.
  2. 2.The applicant is granted time to file the sealed Order arising from the Court of Appeal Judgment which time is hereby enlarged for a further seven (7) days from the date of this Ruling.
  3. 3.The Application dated 28th January, 2022 is hereby allowed in the above terms.
  4. 4.Each party shall bear its costs of the Application.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018
Jurisdiction invoked
Articles 1, 2, 159, 163, 258 and 259 of the Constitution and Rules 3, 15 and 32 of the Supreme Court Rules, 2020

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 execution of the decision of the Court of Appeal (Okwengu, Kiage & Kantai, JJ. A) in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018 delivered on 22nd October, 2021 be and is hereby stayed pending the hearing and determination of the appeal.
p. 3 Stay of execution pending appeal
Those principles require that an applicant must satisfy the Court that the intended appeal is arguable and not frivolous and that unless the stay order sought is granted, the appeal or intended appeal would be rendered nugatory.
p. 2 Principles for grant of stay of execution
there is no doubt that the applicant's intended appeal is arguable as the applicant seeks to challenge the manner in which the majority in the Court of Appeal arrived at its decision that Section 23(2) of the Sixth Schedule to { the Constitution}} does not oust the jurisdiction of the High Court to review the decisions of the Judges and Magistrates Vetting Board.
p. 2 Arguability of intended appeal
Each party shall bear its costs of the Application.
p. 3 Costs order

Key timeline

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2021-10-22
Court of Appeal delivered judgment in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018.
2022-01-28
Chief Justice & Another filed application for stay of execution and extension of time.
Ruling date
Supreme Court allowed the application, staying the Court of Appeal decision and granting 7 days to file the sealed order.

Practical implications

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For lawyers

Stay applications: key threshold

When seeking a stay pending appeal, you must clearly show both that the appeal is arguable (not frivolous) and that without a stay the appeal will be nugatory. Here, the Supreme Court accepted that the risk of respondents re-engaging the Judiciary and claiming benefits made the appeal nugatory. Use this reasoning in similar cases involving reinstatement or back-pay claims.

For businesses

Appeals can pause enforcement

If you lose a court case and plan to appeal, you can ask the higher court to stop enforcement while the appeal is pending. The key is to show your appeal raises a serious legal issue and that enforcing the judgment now would make your appeal useless—for example, if the other side could immediately claim money or benefits you cannot recover.

For individuals

Your rights during appeal

If you win a case against a government body, the other side may ask a higher court to delay enforcement while they appeal. The court will balance your right to enjoy the judgment against the risk that the appeal becomes pointless. You may need to show that delaying enforcement won't cause you irreparable harm.

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 enforcement of a judgment while an appeal is pending. In Kenya, you must show the appeal is arguable and that without the stay the appeal would be rendered nugatory.

Can the Supreme Court extend time to file documents in Kenya?+

Yes, the Supreme Court has discretion to extend time under Rule 15(2) of the Supreme Court Rules, 2020. You must satisfy the principles from the Nicholas Kiptoo Korir Salat case, including showing good reason for the delay.

What does 'appeal rendered nugatory' mean in Kenyan law?+

It means the appeal would become pointless or ineffective if the lower court's decision is enforced before the appeal is heard. For example, if the other side immediately claims benefits you cannot recover, the appeal loses its value.

Does the High Court have jurisdiction over the Judges and Magistrates Vetting Board in Kenya?+

This is a contested legal issue. The Court of Appeal said Section 23(2) of the Sixth Schedule to the Constitution does not block High Court review. The Supreme Court has agreed to hear an appeal on whether that section ousts the High Court's jurisdiction.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Commission v Oduor & 4 others", Case Analysis (2022). Petition 18 (E025) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/10/eng@2022-05-19

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