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Court of AppealPartially AllowedCivil Appli. Nai 111 of 2007 (UR. 73/2007)· [2007] KECA 54 (KLR)

COUNCILLOR JOSEPH CHACHA MWITA & 3 others v UHURU KENYATTA & 6 others [2007] KECA 54 (KLR)

Court of Appeal of Kenya
13 July 2007
1,715 words in judgment
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The bottom line

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Kenya's Court of Appeal froze the arbitration over KANU's ODM-K deal but refused to stop party leaders from doing their jobs.

What this practically means

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Executive summary

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Four elected councillors on a KANU ticket applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution and a temporary injunction pending the hearing of their appeal (Civil Appeal No. 88 of 2007) against a ruling of Musinga J in the High Court at Nakuru (HCCC No. 54 of 2007) delivered on 19 April 2007. The High Court had stayed the councillors' suit and referred their dispute with seven KANU national officials to arbitration under section 6 of the Arbitration Act and Article 23 of the KANU Constitution, the dispute arising from the National Delegates Conference's decision to have KANU join ODM-K as a corporate member. The applicants feared the move would kill KANU, render them partyless and deny them the right to defend their civic seats on a KANU ticket. Restating the settled twin principles drawn from Githunguri v Jimba Credit Corporation Ltd (No 2) - that the intended appeal must be arguable and that, absent relief, its success would be rendered nugatory - the court noted that counsel for the respondents did not oppose the stay prayers. It granted a stay of execution of the High Court order and a stay of the arbitration proceedings pending the appeal. It refused the temporary injunction because, as worded, it sought an order grinding KANU's operations to a halt: the respondents were the only national officials, no resolution of the electors supported stopping them, and the validity of the cooperation with ODM-K remained untested on the scanty evidence. Justice, the court held, must look at both sides of the street. Costs were made costs in the appeal, and the court expressly left the merits to the hearing of the appeal.

Key legal issues

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01

The principles governing applications for stay of execution and injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules.

Holding

Two cumulative conditions apply: the intended appeal must be arguable or not frivolous, and, absent a stay of execution, an injunction, or both, the success of the appeal or intended appeal would be rendered nugatory. These principles, drawn from Githunguri v Jimba Credit Corporation Ltd (No 2), are well settled. On this motion the respondents did not oppose the stay prayers, and the court granted the stay of execution and the stay of arbitration proceedings.

Reasoning

The court identified Githunguri as the starting point of a line of authorities guiding rule 5(2)(b) applications, stated the twin conditions as settled and requiring no elaboration, then applied them pragmatically: the applicants' right to challenge the superior court's decision was undoubted, and counsel for the respondents did not oppose prayers (1), (2) and (3). The court therefore granted the stay of execution of the 19 April 2007 order and a stay of the arbitration proceedings pending the appeal, without an extended analysis of arguability.

p. 2
02

The procedure for staying judicial proceedings pending arbitration under section 6 of the Arbitration Act.

Holding

Judicial proceedings in a matter subject to an arbitration agreement may be stayed under section 6 of the Arbitration Act, but only on the formal application of a party, made before that party takes any steps in the proceedings; the court cannot order the stay suo motu. The respondents duly moved the High Court, which stayed the applicants' suit and referred the dispute to arbitration under Article 23 of the KANU Constitution.

Reasoning

Explaining the provenance of the order under challenge, the court recorded that the respondents invoked section 6 of the Arbitration Act together with Article 23 of the KANU party constitution; that Musinga J found the respondents still KANU members bound by the party constitution, so the dispute fell within Article 23; and that the learned judge accordingly ordered reference of the dispute to a panel of arbitrators to be appointed by the National Chairman in consultation with the NEC within 30 days, staying the suit to facilitate the arbitration.

p. 3
03

Whether a temporary injunction should issue restraining the elected KANU officials pending the appeal (prayer 4).

Holding

The injunction was refused. The court has a duty to protect KANU members against decisions in breach of the party constitution, but a reciprocal duty not to hamstring elected officials from performing the duties the electors bestowed on them. No resolution of the electors supported stopping the respondents; as the only National Officials, injuncting them might leave the party with no one in office.

Reasoning

The court balanced the applicants' undoubted right to challenge the superior court's decision against the likely effect of the order sought. The evidence was scanty: the decision for KANU to cooperate with ODM-K appeared to have been reached at a meeting of one of the party organs, but the court had no details and could not say whether it was validly made; that could be clarified at the hearing of the appeal. Justice, the court held, must look at both sides of the street, so it eschewed any order likely to paralyse KANU's operations.

p. 4

Legal principles established

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  • On an application under rule 5(2)(b) of the Court of Appeal Rules, the applicant must show (a) that the intended appeal is arguable or not frivolous, and (b) that unless a stay of execution, an injunction, or both, is granted, the appeal or intended appeal, if successful, will be rendered nugatory.
  • A stay of judicial proceedings pending arbitration under section 6 of the Arbitration Act may be granted only on the formal application of a party, made before that party takes any steps in the proceedings; a court cannot stay a suit suo motu.
  • In granting or refusing interim relief, a court must weigh the effect of the orders on both sides and will eschew making orders likely to paralyse the operations of an organisation, absent evidence (such as an electors' resolution) supporting the restraint sought.

Court orders

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  1. 1.Stay of execution of the order made on 19th April 2007 in Nakuru High Court Civil Case No. 54 of 2007 pending the hearing and determination of Civil Appeal No. NAK 8 of 2007 (UR) (prayer 2 granted).
  2. 2.Stay of any arbitration proceedings as ordered in the said suit pending the hearing and determination of Civil Appeal No. NAK 8 of 2007 (UR) (prayer 3 granted).
  3. 3.No order made on prayer (1) of the motion, which was spent.
  4. 4.Prayer (4), the temporary injunction against the respondents, declined and refused.
  5. 5.The costs of the motion shall be in Civil Appeal No. 88 of 2007.
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 54 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules ('the Rules of this Court') - application for stay of execution and/or injunction pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "COUNCILLOR JOSEPH CHACHA MWITA & 3 others v UHURU KENYATTA & 6 others [2007] KECA 54 (KLR)", Case Analysis (2007). Civil Appli. Nai 111 of 2007 (UR. 73/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/54/eng@2007-07-13

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