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Court of AppealPartially AllowedCivil Application No. Nai. 304 of 2014 (UR 227/2014)

Njuguna S. Ndung’u v Ethics & Anti Corruption Commission & 3 others [2015] KECA 915 (KLR)

Court of Appeal
6 March 2015
JMJ.W. MweraPKP.O. KiageSKS. Gatembu Kairu
6,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it can block arrest and prosecution pending appeal, protecting former CBK Governor Prof. Ndung'u from corruption charges while his appeal is heard.

What this practically means

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Executive summary

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The applicant, a former Governor of the Central Bank of Kenya, sought conservatory orders restraining the Ethics and Anti-Corruption Commission, the Director of Public Prosecutions and the Inspector General of Police from arresting, arraigning or prosecuting him pending the hearing of his appeal (Civil Appeal No. 333 of 2014) against the dismissal by Odunga, J. of High Court Petition No. 73 of 2014, which had challenged his intended prosecution over the alleged loss of Kshs. 400 million in a Central Bank tender awarded to Horsebridge Network Systems pursuant to orders of the Public Procurement Administrative Review Board. The DPP filed a preliminary objection contending that conservatory orders were unknown to Rule 5(2)(b) and that a negative dismissal order is incapable of being stayed. The Court rejected the objection. Holding that the twin limbs for Rule 5(2)(b) relief (arguability and nugatory aspect) are settled, it found the appeal arguable on the question of the extent of criminal liability for ostensible compliance with PPARB orders, viewed through the rights-based dispensation of Articles 10 and 157(11). It held that conservatory orders fall within the Rule 5(2)(b) jurisdiction read with sections 3A and 3B of the Appellate Jurisdiction Act and the Constitution, adopting M'Inoti JA's usage in Equity Bank and the Supreme Court's jurisprudence in Moi High School Kabarak and Gatirau Peter Munya. It also held that negative orders may in appropriate cases be subject of status quo preserving relief. The application was allowed: a conservatory order restraining arrest, arraignment or prosecution was granted pending the appeal, the appeal was directed to be fast-tracked on priority basis, and costs of the application were to abide the outcome of the appeal. The High Court decision itself was not disturbed at this interlocutory stage.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd respondent's preliminary objection holds that the Court lacks jurisdiction to grant conservatory orders under Rule 5(2)(b) and that a negative dismissal order cannot be stayed
  2. 2.Whether the Court of Appeal may grant conservatory orders (restraint of arrest and prosecution) pending appeal under Rule 5(2)(b) read with the overriding objective and the Constitution
  3. 3.Whether the applicant's intended appeal is arguable
  4. 4.Whether the appeal would be rendered nugatory if conservatory orders are not granted

Key legal issues

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01

Whether conservatory orders fall within the Court of Appeal's Rule 5(2)(b) jurisdiction

Holding

Yes. Rule 5(2)(b) names stay of execution, injunction and stay of proceedings, but conservatory orders may issue under the same Rule read with sections 3A and 3B of the Appellate Jurisdiction Act and the Constitution; the jurisdiction preserves the substratum of the appeal and the status quo.

Reasoning

The Court adopted M'Inoti JA's deliberate and repeated usage of 'conservatory orders' in Equity Bank v West Link Mbo, and aligned itself with the Supreme Court's jurisprudence in Moi High School Kabarak and Gatirau Peter Munya. It held the incorporation of conservatory orders into Rule 5(2)(b) is a logical consequence of fidelity to the Constitution and the overriding objective, and that any nuanced expansion of the traditional twin limbs is to be embraced since the principles are judge-made. The object must always be the doing of substantial justice.

p. 8
02

Whether a dismissal order (a negative order) is incapable of being stayed

Holding

The objection fails. Though a negative order is not capable of execution in the conventional sense, the Court may in appropriate cases invoke its inherent jurisdiction to maintain the status quo pending appeal, as in Dhiman v Shah and the Erinford principle.

Reasoning

The Court observed that in Dhiman v Shah the Court, absent express provisions in the Rules, resorted to inherent jurisdiction to maintain the status quo pending appeal, thereby addressing the negative-order argument. It analogised to a judge who refuses an injunction but may nonetheless grant one pending appeal against his own refusal (Erinford Properties). The power to order a stay is inherent in the Court and may be deployed ex-debito justitiae.

p. 7
03

Whether the applicant's appeal was arguable and would be rendered nugatory

Holding

Yes on both limbs. The appeal raises the important question of the extent of criminal liability for apparent or ostensible compliance with lawful orders of the Public Procurement Administrative Review Board; and an arrest and prosecution before the appeal is determined would render it nugatory given the dire penalties under the Anti-Corruption and Economic Crimes Act, 2003.

Reasoning

A single arguable point suffices. The Court balanced the public interest in prosecuting crime against the applicant's rights-based challenge, noting Articles 10 and 157(11) and that the respondents conceded a rights-violating prosecution invites intervention. No harm, prejudice or inconvenience would befall the respondents by awaiting the appeal's hearing and determination.

p. 6

Legal principles established

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  • The Court of Appeal has jurisdiction under Rule 5(2)(b), as read with sections 3A and 3B of the Appellate Jurisdiction Act and the Constitution, to grant conservatory orders protecting an applicant from arrest and prosecution pending appeal, notwithstanding that Rule 5(2)(b) enumerates only stay of execution, injunction and stay of proceedings.
  • A negative order of dismissal, though not itself capable of execution, may in appropriate cases be the subject of interlocutory relief preserving the status quo pending appeal.
  • The twin limbs for Rule 5(2)(b) relief are an arguable appeal and the nugatory aspect, with the discretion wide and unfettered.

Court orders

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  1. 1.Conservatory order restraining the respondents from arresting, arraigning or prosecuting the applicant pending the hearing and determination of Civil Appeal No. 333 of 2014
  2. 2.The appeal (Civil Appeal No. 333 of 2014) be fast-tracked for hearing and determination on priority basis, preferably in the next Court term
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

PK
majority

Wrote the judgment

SK
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C. Petition No. 73 of 2014
Jurisdiction invoked
Article 164(3) of the Constitution as read with Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Rule 5(2)(b) of the Court of Appeal Rules; Articles 20(3) and 23(3) of the Constitution invoked by the applicant

Relief refused

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Expedited hearing of the main appeal as an independent prayer

Subsumed into the final order directing fast-tracking; the appeal was already filed

p. 10

Costs

The costs of this application shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly grant a conservatory order to restrain the respondents from arresting, arraigning or prosecuting the applicant pending the hearing and determination of Civil Appeal No. 333 of 2014.
p. 10Final orders - conservatory order issued
We direct that the said appeal be fast-tracked for hearing and determination on priority basis, preferably in the next Court term.
p. 10Final orders - priority hearing
The costs of this application shall abide the outcome of the appeal.
p. 10Costs
there appears to us to be no impediment in doctrine or practical good sense to the issuance of what the applicant has called “conservatory orders” under the same Rule as read with Sections 3A and 3B of the Appellate Jurisdiction Act
p. 7Jurisdiction to grant conservatory orders under Rule 5(2)(b)
The applicant must first satisfy the court that he has an arguable appeal which means an appeal that is not frivolous but raises a real issue to be urged and answered on appeal.
p. 6Rule 5(2)(b) principles - arguability
That, for purposes of this case, addresses the argument about negative orders being incapable of being stayed. In appropriate cases they can
p. 6Stay of negative orders
The object always must be the doing of substantial justice.
p. 8Overriding objective

Issues in the judgment

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minor

The judgment renders the respondent bank's name inconsistently - 'WEST BANK MBO LTD' in the first reference and 'WEST LINK MBO LTD' in the later reference to the same case

minor

The judgment renders the applicant's name inconsistently - 'Prof. Njuguna S. Ndung’u' in the cause title and 'Prof. Njuguna S. Ndungu' in the body

minor

Githunguri v Republic (No. 2) is cited as [1966] KLR 1, which is chronologically inconsistent with Githunguri (No. 1) [1985] KLR 91

minor

The Supreme Court case Munya v Kithinji is spelled 'GATIRAU' on first citation and 'GATIRAV' on second citation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njuguna S. Ndung’u v Ethics & Anti Corruption Commission & 3 others [2015] KECA 915 (KLR)", Case Analysis (2015). Civil Application No. Nai. 304 of 2014 (UR 227/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/915/eng@2015-03-06

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