Ibrahim Ahmed v Returning Officer Kamukunji Constituency & 4 others [2008] KECA 93 (KLR)
The bottom line
#Winning a stay in Kenya's Court of Appeal requires proving both an arguable appeal and irreparable harm—arguing the appeal alone is not enough.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The intended appeal is arguable on several points, including that the High Court issued prohibition against a decision the second respondent never made and made an erroneous finding that there was no explanation for the missing results of 22 polling stations.
Counsel for the applicant advanced two arguable points: the superior court granted prohibition restraining a repeat election order that the Electoral Commission had never made, and the court wrongly found there was no explanation for the missing results of 22 polling stations when reasons had been given. The court agreed the appeal was arguable on several points, not only the two cited. However, arguability alone was insufficient to obtain stay.
Whether the success of the intended appeal on the order for costs would be rendered nugatory if stay is refused
The applicant failed to demonstrate nugatory aspect; costs paid to the third respondent, now a Member of Parliament, could be recovered if the appeal succeeded. The application was dismissed.
The applicant had to demonstrate why costs, once paid to the third respondent, could not be recovered. Counsel admitted an affidavit of means showing the third respondent was a man of straw was not on record. The court took judicial notice that the third respondent, as a sitting Member of Parliament, might not be a man of straw, so recovery would be possible. The nugatory principle was therefore not satisfied and the application failed. The court declined to penalise the applicant in costs as the delay was not his fault.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy both principles - that the intended appeal is arguable and that its success would be rendered nugatory if stay is not granted.
- Where a stay application is overtaken by events because the order sought to be stayed has been executed, the court will not grant a stay that would serve no purpose.
Court orders
#- 1.The notice of motion dated 5th August 2008 was dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Application No. 13 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibrahim Ahmed v Returning Officer Kamukunji Constituency & 4 others [2008] KECA 93 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 218 of 2008 (UR 138/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/93/eng@2008-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.