LEKISHON OLEGEEM v PETER NKOIDILIA & 7 others [2009] KECA 335 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a High Court ruling that allowed elected Trans-Mara council officials to keep working, because the planned appeal raised no point of law.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
The Court held the intended appeal was not arguable, as the draft memorandum raised no point of law and the arguments appeared ex facie to have no merit.
The intended appeal would be a second appeal limited to points of law under section 72 of the Civil Procedure Act. The seven grounds of appeal merely alleged that the learned Judge misunderstood and misconceived the circumstances before him, without further elaboration disclosing a point of law. The Court also doubted the competency of seeking a stay of a stay of execution granted by the superior court.
Whether the Chief Magistrate's injunction against duly elected council officials was erroneous
The Court agreed with the learned Judge that injunctions restraining elected officials of a local authority from performing their duties, before nullification of their election, were erroneous and misconceived.
Once elected and sworn in, officials of a local authority remain competent to serve until their election is nullified. The magistrate's orders restrained the respondents from performing their duties as elected and administrative officials, rendering the Council inoperational; their scope was extremely wide and their effects drastic. Such orders ought not to have been granted at all.
Whether the second limb of the Rule 5(2)(b) test (nugatory effect) needed consideration
Not considered; once the intended appeal was found not arguable, the second limb fell away.
The Rule 5(2)(b) test has two cumulative limbs: arguability and nugatory effect. Having failed on the first limb, the applicant could not succeed regardless of the second limb, so the Court did not address it.
Legal principles established
#- An application under Rule 5(2)(b) of the Court of Appeal Rules succeeds only where the applicant demonstrates an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted.
- Once an official of a local authority has been elected and sworn into office, he remains elected and competent to serve until his election is nullified.
- An intended second appeal to the Court of Appeal can only be on a point of law under section 72 of the Civil Procedure Act, and grounds that merely allege that the judge misunderstood the circumstances disclose no point of law.
Court orders
#- 1.The application for stay of execution pending appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.A. No. 192 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution / injunctive relief pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LEKISHON OLEGEEM v PETER NKOIDILIA & 7 others [2009] KECA 335 (KLR)", Case Analysis (2009). Civil Appeal (Application) No. 63 of 2009 (UR 36/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/335/eng@2009-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.