Kiambu County Government & 3 others v Gakuru & others (Civil Application 97 of 2014) [2014] KECA 157 (KLR)
The bottom line
#The Court of Appeal refused to pause a ruling that voided Kiambu County's 2013 Finance Act, meaning Kenyan counties must take public participation seriously before passing tax laws.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, particularly on whether the Finance Act, 2013 was subjected to sufficient public participation, and on whether the Governor, Deputy Governor and Executive Committee were properly sued and whether breaches of fundamental rights must be specifically pleaded.
The eighteen grounds of appeal were condensed into three: misdirection on public participation, maintainability of the suit against the Governor, Deputy Governor and Executive Committee, and failure to hold that breaches of fundamental rights must be specifically pleaded. The court found these grounds not frivolous, especially the public participation question on which the judgment below turned, so the first limb of Rule 5(2)(b) was satisfied.
Whether refusal of stay would render the appeal nugatory
Refusal of stay would not render the appeal nugatory; the applicants failed to demonstrate that their operations would be paralysed or that damages would be inadequate.
The applicants did not disclose the state of their County Exchequer Account, had other revenue sources including the equitable share of national revenue, borrowing capacity, grants and emergency funds, and continued collecting taxes despite the nullification. They also began enacting a 2014/2015 Finance Act. Further, a declaration of nullity is not executable and cannot be stayed. The second limb of the test therefore failed.
Legal principles established
#- Both limbs of the Rule 5(2)(b) test must be satisfied for a stay to issue; failure on either is fatal
- An arguable appeal need not be one that would succeed, only one that ought to be argued fully
- A declaration of nullity cannot be stayed because it is not an order capable of execution
Court orders
#- 1.The notice of motion dated 28th April 2014 is dismissed
- 2.Costs of the application awarded to the respondents in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 532 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiambu County Government & 3 others v Gakuru & others (Civil Application 97 of 2014) [2014] KECA 157 (KLR)", Case Analysis (2014). Civil Application No. 97 of 2014 (UR No. 80/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/157/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.