Wambora v County Assembly of Embu & 37 others (Civil Application 46 of 2015) [2015] KECA 513 (KLR)
The bottom line
#Kenya's Court of Appeal let Embu Governor Wambora stay in office for four months while his impeachment appeal was fast-tracked, ruling his appeal raised real questions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal against the High Court ruling is frivolous or raises arguable issues
- 2.Whether, if the conservatory orders sought are not granted, the applicant's appeal if successful will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal raises several arguable issues, including the interpretation of Articles 181 and 182 of the Constitution on removal of a county governor and public participation.
The draft memoranda of appeal raised issues anchored on interpretation of constitutional provisions. Whether the issues are based on settled law is a conclusion that can only be arrived at upon hearing the appeal. For a Rule 5(2)(b) motion, it is enough that the issues require interrogation in the intended appeal; a single arguable issue suffices.
Nugatory aspect and status of Article 182(2)
The deputy county governor's right under Article 182(2) has not crystallised because the removal process has not been conclusively determined, so the appeal would be rendered nugatory if the deputy assumed office.
Article 182(2) is triggered by the key words 'if a vacancy occurs'. Since the removal of the governor under Article 182(1)(e) remained contested on appeal, the vacancy had not been confirmed. The applicant's right of appeal should not be rendered futile by application of Article 182(2) before the appeal is heard and determined.
Distinguishing Rule 5(2)(b) applications from Order 40 interlocutory injunctions
The principles governing Rule 5(2)(b) applications are not the same as those for interlocutory injunctions under Order 40; the Nguruman test cited by the 5th respondent was inapplicable.
Under Rule 5(2)(b), establishment of an arguable appeal that is not frivolous suffices, whereas Order 40 requires a prima facie case with probability of success, a higher standard. Nguruman was an appeal against refusal of an Order 39 injunction, not a Rule 5(2)(b) application. Balance of convenience is not a pre-condition under Rule 5(2)(b).
Separation of powers and the court's mandate on impeachment
The court has no mandate to inquire into the merits of allegations against the governor; its review is limited to the process and the reasonableness of the action taken.
Like the High Court, the Court of Appeal cannot inquire into the merit of the allegations made against the applicant, as separation of powers must be maintained. Its mandate on appeal is limited to reviewing the High Court's consideration of the process and the reasonableness of the action taken against the applicant.
Legal principles established
#- The test under Rule 5(2)(b) is twofold: an arguable appeal (not frivolous) and that the appeal, if successful, should not be rendered nugatory.
- Demonstration of a single arguable issue suffices to establish arguability of an intended appeal.
- The Rule 5(2)(b) test differs from, and is lower than, the Order 40 Civil Procedure Rules test for interlocutory injunctions; balance of convenience is not a pre-condition under Rule 5(2)(b).
- Where the removal of a county governor is still a contested issue on appeal, the deputy county governor's right under Article 182(2) of the Constitution has not crystallised and the deputy is not entitled to assume office.
- Balance of convenience is merely a factor that may be taken into account in establishing the nugatory aspect, not a pre-condition, under Rule 5(2)(b).
Court orders
#- 1.A conservatory order that the applicant remain in office and continue to exercise his powers as Governor of Embu County for a limited period of four months effective from the date of the order
- 2.The applicant to file and serve the memorandum of appeal and record of appeal within thirty (30) days
- 3.The President of the Court of Appeal to make arrangements for the appeal to be fast tracked and heard within the four months period during which the conservatory orders remain in force
- 4.A copy of the order to be served on the Registrar of the High Court to ensure the High Court proceedings and judgment are availed to the applicant
- 5.Costs of the motion to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Embu Constitutional Petitions No. 7 and 8 of 2014 (Consolidated)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, read with Sections 3A and 3B of the Appellate Jurisdiction Act
- Consolidated with
- Embu Constitutional Petitions No. 7 and 8 of 2014 (Consolidated)
Relief refused
#An open-ended injunction restraining any person from being sworn in as Governor of Embu County pending the hearing and determination of the intended appeal
The court granted only a time-limited conservatory order of four months, necessitated by public interest and the need for expeditious disposal, rather than an indefinite restraint
Costs
Costs of this motion shall be costs in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
First, the intended appeal should not be frivolous or as otherwise put, the applicant must show that it has an arguable appeal, and secondly, this Court should ensure that an appeal if successful should not be rendered nugatory
Demonstration of a single arguable issue is all that is necessary in establishing the arguability of an appeal
The deputy county governor's right under Article 182(2) has, therefore not crystalized, as the process of removal has not been determined and the 'vacancy' has not been confirmed
we allow the applicant's motion to the extent of issuing a conservatory order for him to remain in office and continue to exercise his powers as Governor of Embu County for a limited period of four months efiective from the date hereof
Costs of this motion shall be costs in the appeal. Those shall be the orders of this Court.
Issues in the judgment
#The judgment refers to respondents relying on Article 181(2) regarding the deputy governor assuming office, whereas the constitutional provision on assumption of office by the deputy county governor upon vacancy is elsewhere quoted as Article 182(2); the two references appear inconsistently in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambora v County Assembly of Embu & 37 others (Civil Application 46 of 2015) [2015] KECA 513 (KLR)", Case Analysis (2015). Civil Application No. Nai. 47 of 2015 (as stated: application under Rule 5(2)(b) following Embu Constitutional Petitions No. 7 and 8 of 2014 (Consolidated)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/513/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.