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Court of AppealDismissedCivil Application No. 241 of 2009 (UR 170/2009)· [2009] KECA 110 (KLR)

Joseph Serenge v Ponyonchi Kunyobo & 2 others

Court of Appeal of Kenya
23 October 2009
ROR.S.C. OmoloSBS.E.O. BosireEOE.O. Okubasu
1,289 words in judgment
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The bottom line

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The Court of Appeal refused to suspend fresh Kakamega mayoral elections already held, ruling that a stay application cannot undo events that have already happened.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Bosire and Okubasu, JJ A) on a notice of motion by Joseph Serenge, the recently elected Mayor of the Municipal Council of Kakamega, seeking under Rule 5(2)(b) of the Court of Appeal Rules a stay of the ruling and order of Chitembwe, J of 30th July 2009 in HCCC No. 106 of 2009 pending an intended appeal. The judge had held that Serenge’s election as mayor on 10th July 2009 was not conducted in accordance with the law, restrained him from assuming office, and directed fresh elections within twenty-one days. Background: a magistrate had on 9th July 2009 temporarily restrained the first respondent from standing in the mayoral elections, and Serenge was elected unopposed; a parallel High Court suit by councillors then produced Chitembwe, J’s orders. By 12th August 2009, however, the ordered elections had been held and one Vincent Anjeche Nyapola elected mayor. Applying the settled two-limb Rule 5(2)(b) test, the Court accepted the intended appeal was arguable, notably on the judge’s jurisdiction given the pending magistrate’s court case, but held the nugatory limb failed: the motion could not nullify the completed elections or conclusively determine jurisdiction, as such a hearing cannot be converted into an appeal. The motion was overtaken by events and dismissed, with costs in the intended appeal. The ruling binds lower courts on the scope of Rule 5(2)(b) applications.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, particularly on the contention that the judge lacked jurisdiction to grant the orders despite the pending magistrate’s court case.

Reasoning

Counsel argued the judge’s jurisdiction was questionable given the subsisting suit in the magistrate’s court over the same elections. The Court accepted this raised a point capable of argument, while stressing arguability does not predict success. The threshold under the first limb of Rule 5(2)(b) was therefore met.

p. 2
02

Whether the appeal would be rendered nugatory

Holding

The second limb failed because the elections ordered by the High Court had already been held, leaving nothing for the Court to stay on an interlocutory motion.

Reasoning

The elections, including for mayor, had been conducted on 12th August 2009 and a new mayor elected. The Court could not nullify those elections in a Rule 5(2)(b) motion, as that would require conclusively determining jurisdiction, which is for the appeal. The motion was overtaken by events and dismissed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two tests: that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless the order sought is granted.
  • An arguable appeal need not be one that will succeed; it suffices that it is capable of being argued.
  • A Rule 5(2)(b) application cannot be used to determine the merits of the intended appeal or to nullify events that have already occurred; such determination belongs to the appeal itself.

Court orders

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  1. 1.The notice of motion dated 6th August 2009 is dismissed
  2. 2.The costs of the dismissed motion shall be in the intended appeal
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 106 of 2009
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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Cite this brief

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Cite this brief

Caselaw, "Joseph Serenge v Ponyonchi Kunyobo & 2 others", Case Analysis (2009). Civil Application No. 241 of 2009 (UR 170/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/110/eng@2009-10-23

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