THE KENYA AFRICAN NATIONAL UNION v THE ATTORNEY GENERAL & 4 OTHERS [2007] KECA 428 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed KANU's bid to pause High Court proceedings, confirming that an arguable appeal alone is never enough to get a stay.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under Rule 5(2)(b) where leave to appeal has not been obtained
The notice of appeal, not the grant of leave, gives the Court jurisdiction over a Rule 5(2)(b) application; whether leave has been obtained is irrelevant to the motion.
The Court relied on Rule 74(4) of the Court's Rules, which provides that where an appeal lies only with leave, it is not necessary to obtain such leave before lodging the notice of appeal. The Applicant had lodged its notice of appeal on 13th November 2006, so the Court had jurisdiction and did not need to determine whether leave had been granted.
The twin test for stay of proceedings under Rule 5(2)(b)
An applicant must show an arguable appeal and that, unless the stay is granted, the success of the appeal would be rendered nugatory. Arguability alone is insufficient.
The Court restated the settled principles under Rule 5(2)(b): an arguable appeal is not one that must succeed, but arguability alone does not entitle a party to a stay. The applicant must further demonstrate that refusal of the stay would render a successful appeal nugatory. Following KCB v Benjo and Silverstein v Chesoni, where costs can remedy the continuation of proceedings, the nugatory requirement is not met.
Application of the nugatory test to a stay of proceedings in the High Court
Where the appeal, if successful, would merely render the lower court proceedings unnecessary and an order for costs can remedy that, the appeal is not rendered nugatory and the stay must be refused.
Quoting the Chesoni decision, the Court noted that if the appeal in the High Court is heard and determined and the appeal in this Court later succeeds, the High Court proceedings would have been rendered unnecessary, but an appropriate order for costs can remedy that. Counsel for the Applicant failed to point out any special factors distinguishing the application from the line of prior decisions, so the Court was bound to follow the established principles.
Legal principles established
#- For purposes of a Rule 5(2)(b) application, the notice of appeal confers jurisdiction and leave to appeal need not first be obtained.
- An arguable appeal alone does not entitle a party to a stay; the applicant must additionally show that refusal of the stay would render the appeal nugatory.
- A stay of proceedings will generally be refused where the successful appeal would leave the lower court proceedings unnecessary but costs can remedy the situation.
Court orders
#- 1.The notice of motion dated 16th January 2007 and lodged in the Court on 18th January 2007 is dismissed
- 2.Costs of the dismissed motion shall be costs in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi, Constitutional Court
- H.C. Misc. Application No. 128 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (an application for stay of proceedings pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THE KENYA AFRICAN NATIONAL UNION v THE ATTORNEY GENERAL & 4 OTHERS [2007] KECA 428 (KLR)", Case Analysis (2007). Civil Application No. 7 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/428/eng@2007-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.