TOWN CLERK MUNICIPAL COUNCIL OF EMBU & ANOTHER v JOHN N. M. NYAGA [2007] KECA 131 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a court order that would have kept the Embu Mayor in office after his council was dissolved ahead of national civic elections.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under Rule 5(2)(b) of the Court of Appeal Rules.
- 2.Whether the intended appeal would be rendered nugatory unless execution of the orders of the superior court is stayed.
- 3.Whether section 13(2) of the Local Government Act applies to periodic elections of Mayors or to all cases including when the Council has been dissolved pursuant to law (framed by the court for the intended appeal; not decided in this ruling).
- 4.Whether the office of a Mayor can legally exist when the whole council, including the offices of councillors, has been lawfully dissolved (framed by the court for the intended appeal; not decided in this ruling).
Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b) of the Court of Appeal Rules.
Yes. The intended appeal is arguable because it raises a serious question of national importance on the interpretation of the law regarding the term of office of a Mayor.
The decision of Khaminwa J turned on construing section 13(2) of the Local Government Act as meaning that the office of mayor was never intended to be vacant. The Court set that against section 58(1), which obliged the Minister to dissolve all local authorities upon dissolution of Parliament, section 13(1), under which a mayor is elected from among the councillors, and section 27(1), which fixes a five-year term for councillors. The unresolved tension between these provisions made the intended appeal arguable and raised a question of national importance.
Whether the intended appeal would be rendered nugatory if the orders of the superior court are not stayed.
Yes. The respondent had already obtained, at an interlocutory stage, the same reliefs he sought in the suit; the suit was unlikely to be heard before the 27 December 2007 civic elections; and the respondent could be compensated for any loss if the appeal ultimately failed.
The respondent had been granted, at an interlocutory stage, the same reliefs he sought in the suit, and those orders were operative pending the hearing and determination of the suit. The Court inferred he would have little interest in prosecuting the suit, which was unlikely to be heard before the 27 December 2007 civic elections. Maintaining a mayor in a contested office on public funds would be unjust and a heavy financial burden, and the Council would suffer great financial loss if the office was held not to exist after dissolution, while the respondent could be compensated if the appeal failed.
Whether section 13(2) of the Local Government Act applies where the council has been dissolved under section 58(1) - that is, whether the office of Mayor can legally subsist after lawful dissolution of the whole council.
Not determined. The Court held only that the point is serious, arguable and of national importance, and left it for decision in the intended appeal.
Sitting on an interlocutory stay application, the Court expressly framed these questions but made no final determination, holding only that the intended appeal raised a serious question of national importance on the term of office of a Mayor. It observed that the mayor is elected from among the councillors, that the mayor and councillors together constitute the council, that mayors are elected every two years, and that the Minister lawfully dissolved all councils on 23 October 2007 to pave the way for civic elections. Those observations made the construction of section 13(2) a live question for the appeal.
Legal principles established
#- For purposes of Rule 5(2)(b) of the Court of Appeal Rules, an intended appeal is sufficiently arguable where it raises a serious question of national importance on the interpretation of a statute.
- A stay of execution may properly be granted where the party in whose favour the order below was made has, at an interlocutory stage, already obtained the substance of the reliefs sought in the suit, such that the appeal would be rendered nugatory if the order is executed.
- Where the respondent can be adequately compensated for any loss suffered if the appeal ultimately fails, that consideration weighs in favour of granting a stay.
- It is unjust, and a burden on public funds, to maintain a party in a public office indefinitely where the very existence of that office is seriously contested.
Court orders
#- 1.Execution of the Ruling/Orders of the superior court (Khaminwa J) dated 7th November, 2007 in Embu High Court Case No. 138 of 2007 stayed pending the hearing and determination of the intended appeal.
- 2.Costs of the application to be costs in the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- H.C.C.C. No. 138 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the final analysis, the application is allowed with the result that the execution of the Ruling/Orders of the superior court dated 7th November, 2007 is stayed pending the hearing and determination of the intended appeal.
The costs of this application shall be costs in the intended appeal.
On analysis, we are satisfied that the intended appeal raises a serious question of national importance on the interpretation of the law regarding the term of office of a Mayor.
It is highly improbable that the respondent would be interested in the prosecution of the suit having obtained the desired orders or that the suit would be heard before the 27th December, 2007 when national civic elections are due.
It would be unjust and a heavy financial burden to the Council which is run by public funds to maintain a Mayor in office indefinitely when the existence of the office is seriously contested.
On the other hand, if the application is allowed and the appeal is ultimately dismissed, the respondent can be adequately compensated for any financial loss that he may have suffered.
It is clear from the Act that the Mayor is elected from amongst the councillors and that the mayor and the councillors constitute a council.
The principles which guide this Court in applications for stay of execution, injunction or stay of proceedings are well known
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TOWN CLERK MUNICIPAL COUNCIL OF EMBU & ANOTHER v JOHN N. M. NYAGA [2007] KECA 131 (KLR)", Case Analysis (2007). Civil Appeal 283 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/131/eng@2007-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.