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Court of AppealDismissedCivil Application No. NAI. 295 of 2010 (UR. 206/2010)· [2011] KECA 278 (KLR)

Clement Kungu Waibara v Benard Chege Mburu & 2 others [2011] KECA 278 (KLR)

Court of Appeal of Kenya
8 April 2011
EGE. M. GithinjiDAD. K. S. AganyanyaAVAlnashir Visram
1,235 words in judgment
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The bottom line

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The Court of Appeal refused to pause an election petition because the applicant had not raised his security-for-costs complaint properly in the High Court first.

What this practically means

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Executive summary

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The applicant, Clement Kungu Waibara, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings in Election Petition No. 24 of 2008 before Ochieng, J, pending an intended appeal from the ruling of 8th December 2010. That ruling had disallowed an application by Patrick Muiruri to substitute himself as petitioner in place of Benard Chege Mburu, the trial judge holding that the petitioner had not sought to withdraw and wished to prosecute the petition. In the substitution application, the applicant had raised a preliminary objection contending there was no security for costs and the petition should be dismissed under section 21(3) of the National Assembly and Presidential Elections Act; the superior court upheld the first limb but overruled the security for costs limb as not meeting the test of a proper preliminary objection. Counsel for the applicant conceded before the Court of Appeal that no substantive application on the security for costs had been made before the superior court, and that no complaint had been made for some two years. Applying the settled Kagunyi Thande principles, the Court was highly skeptical that the intended appeal was arguable and held that refusal of a stay would not render it nugatory, since the matter was interlocutory and the applicant retained his right of final appeal. The Court also stressed the public interest in the expeditious hearing of election petitions and dismissed the motion dated 17th December 2010 with costs to the three respondents.

Key legal issues

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01

Whether the intended appeal on the security for costs issue was arguable

Holding

The Court was highly skeptical that the appeal was arguable because the security for costs issue had never been raised in a substantive application before the superior court, leaving that court without an opportunity to make findings on it

Reasoning

The applicant's counsel conceded that no substantive application to strike out the petition for want of security for costs had been made, the point having been raised only as a preliminary objection in an unrelated substitution application. The Court therefore lacked the benefit of the superior court's findings, and could not find the intended appeal arguable.

p. 2
02

Whether the appeal would be rendered nugatory if no stay was granted

Holding

No, because the matter was only interlocutory and the applicant's right of final appeal after determination of the petition remained intact

Reasoning

The Court reasoned that refusal of a stay does not extinguish the applicant's right to appeal after the petition is finally determined. Since the complaint concerned an interlocutory matter, the nugatory principle was not satisfied, and public interest favoured expeditious hearing of an election petition.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, absent the stay or injunction, the success of the appeal would be rendered nugatory

Court orders

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  1. 1.The motion dated 17th December, 2010 is dismissed
  2. 2.Costs of the application awarded to the three respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • National Assembly Election (Election Petition) RulesRules 23, 24, 26, 28(3)
  • National Assembly and Presidential Elections ActSection 21(3)

Cases cited (3)

  • Ishmael Kagunyi Thande vs Housing Finance of Kenya Ltd
    Civil Application No. Nai. 157 of 2006 (unreported)
  • Githunguri vs Jimba Credit Corporation Ltd, No 2
    (1988) KLR 838
  • J. K. Industries Ltd vs Kenya Commercial Bank Ltd
    (1982-88)
On appeal from
High Court of Kenya at Nairobi
Election Petition No. 24 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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Cite this brief

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Cite this brief

Caselaw, "Clement Kungu Waibara v Benard Chege Mburu & 2 others [2011] KECA 278 (KLR)", Case Analysis (2011). Civil Application No. NAI. 295 of 2010 (UR. 206/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/278/eng@2011-04-08

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