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Court of AppealDismissedCivil Appli. NAI No. 104 of 2008 (UR. 62/2008)· [2008] KECA 170 (KLR)

Joel Omagwa Onyancha v Simon Nyaundi Ogari & another [2008] KECA 170 (KLR)

Court of Appeal
11 July 2008
1,910 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an election petition, confirming courts will not stop election cases when delays defeat speedy justice.

What this practically means

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Executive summary

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The applicant, the first respondent in Election Petition No. 2 of 2008 before the High Court at Kisii, sought a stay of proceedings pending an intended appeal against a ruling of Musinga J dated 13 March 2008 dismissing his application to strike out the petition for non-compliance with section 21 of the National Assembly and Presidential Elections Act and for want of service of notice of presentation. The application was brought under rule 5(2)(b) of the Court of Appeal Rules and argued on 10 June 2008, by which time the petition hearing had already commenced on 26 May 2008 and several witnesses had testified. The respondents opposed, noting that the applicant's notice of appeal was filed out of time and that he had pending applications for extension of time before single judges. The Court of Appeal (Tunoi, O'Kubasu and Githinji JJA) restated the twin test for rule 5(2)(b) applications - arguability and nugatory-ness - both of which must be satisfied. Applying Silverstein v Chesoni and the principle in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, the Court held that the appeal whose success matters is the one already filed, not the intended one; if the applicant ultimately succeeded, the High Court proceedings would simply have been unnecessary, a prejudice curable by costs. Allowing the stay would also defeat the principle that election petitions be disposed of expeditiously. The application was dismissed with costs. The judgment is a single ruling of the whole Court with no separate opinions.

Key legal issues

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01

Whether the twin test for stay under rule 5(2)(b) was satisfied

Holding

The applicant failed to show that the intended appeal's success would be rendered nugatory; any prejudice from proceedings continuing could be cured by costs, and the stay would undermine the expeditious disposal of election petitions.

Reasoning

The Court applied the settled rule 5(2)(b) test requiring both arguability and nugatory-ness. Assuming arguability, the applicant still failed the second limb: the hearing had commenced, witnesses had testified, and if the intended appeal succeeded the High Court proceedings would merely have been unnecessary - a prejudice curable by an order for costs. The Court also relied on Silverstein v Chesoni quoting KCB v Benjoh Amalgamated. A stay would forestall the quick disposal of election petitions.

p. 3
02

Effect of a notice of appeal filed out of time on a rule 5(2)(b) application

Holding

The applicant's notice of appeal was filed out of time and he had to seek extension of time; this undermined the stay application, since the applicant would first have to clear that obstacle.

Reasoning

The respondents pointed out that the notice of appeal was out of time and the applicant had filed applications for extension of time before single judges. The Court noted that although rule 5(2)(b) refers to 'a notice of appeal' rather than 'a valid notice of appeal', the applicant would still need to satisfy the twin test, and the unresolved status of the notice of appeal weighed against him - the appeal whose success matters is the one already filed.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both requirements - an arguable appeal and that the appeal's success would be rendered nugatory if stay is not granted.
  • In assessing nugatory-ness for an application to stay proceedings, the relevant appeal is the appeal already filed in this Court, not the intended appeal; the Court applies the principle from Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd.
  • An application to stay proceedings that would impede the expeditious disposal of an election petition may be refused even where nugatory-ness could otherwise be cured by costs.

Court orders

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  1. 1.The application for stay of proceedings be and is hereby dismissed with costs

Authorities

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Legislation

  • National Assembly and Presidential Elections Act (Cap. 7)section 21(3)
  • National Assembly and Presidential Elections Act (Cap. 7)section 21
  • National Assembly Elections (Election Petition) RulesRules 13 and 15
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (6)

  • J.K. Industries Ltd v Kenya Commercial Bank Ltd
    [1982-85] 1 KAR 1688
  • Githunguri v Jimba Credit Corporation Ltd (No. 2)
    [1988] KLR 838
  • Reliance Bank Ltd v Norlake Investment Limited
    [2002] 1 E.A. 128
  • Exclusive Estates v Kenya Posts & Telecommunications Corporation and Another
    [2005] 1 E.A.
  • Silverstein v Chesoni
    [2002] 1 KLR 867
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another
    Civil Application No. NAI 50 of 2001 (29/2001 UR)
On appeal from
High Court of Kenya at Kisii
Election Petition No. 2 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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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, "Joel Omagwa Onyancha v Simon Nyaundi Ogari & another [2008] KECA 170 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 104 of 2008 (UR. 62/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/170/eng@2008-07-11

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