Narok County Government v Senate & another [2016] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the Senate from debating Narok County's Mara Conservancy revenue, ruling the County failed to show real harm from the debate.
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 has an arguable intended appeal
- 2.Whether, if the orders sought are not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
Yes. The learned Judge's finding that the Senate was not subjecting the County's locally generated revenue to structured scrutiny, despite generally accepting the holding in International Legal Consultancy Group, raised a triable issue on his application of the law.
The draft memorandum of appeal alleged inconsistency between the Judge's finding on the Senate's oversight role and his dismissal of the application. The Court found this contradiction in the High Court ruling arguable on appeal, sufficient to meet the arguability limb of the Rule 5(2)(b) test, even though the merits were left for the substantive appeal.
Whether the appeal would be rendered nugatory if the injunction were refused
No. Even if the Senate debate proceeded, the applicant would suffer no significant loss, injury or prejudice, and a declaratory order if the appeal succeeded would clarify and rectify the position.
The Court agreed with the learned Judge's view that public interest would be better served without interim orders and that the petition would not be rendered nugatory. The summons threat was also said by the respondents to have been already honoured. Both limbs of Rule 5(2)(b) must be satisfied; failure of the nugatory limb was fatal to the motion.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
- At the interlocutory stage under Rule 5(2)(b), the Court is concerned with preserving the status quo and the right of appeal, and the merits such as prima facie case are for the substantive appeal
Court orders
#- 1.The applicant's notice of motion dated 3rd December 2015 seeking interlocutory injunction pending the intended appeal is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 424 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction/stay pending intended appeal)
Relief refused
#Interlocutory injunction restraining the Senate and/or its Committee from debating and considering questions on revenue collection from the Mara Conservancy and the expenditure thereof, pending the intended appeal
Although an arguable appeal was found, the nugatory test was not satisfied; the debate proceeding would cause no significant loss, injury or prejudice, and a declaratory order on success would rectify the position
Costs
The applicant's motion fails and is dismissed with costs to the respondents
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.
It is clear that in order for the applicant to succeed in its motion, it must satisfy this Court that it has an arguable appeal, which may be rendered nugatory unless the orders sought are granted.
Suffice to state that at this stage, the Court is more concerned with preserving the status quo so as to ensure that the subject of the appeal will not be rendered obsolete.
In our view, the finding of the learned Judge raises a triable issue with regard to his application of the law and this is an issue that is arguable on appeal.
In our view, if the orders sought are not granted, this appeal will neither be rendered nugatory nor a mere academic exercise. We decline to grant an order of stay pending appeal. Consequently, the applicant's motion fails and is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Narok County Government v Senate & another [2016] KECA 32 (KLR)", Case Analysis (2016). Civil Application No. NAI. 289 of 2015 (UR. 247/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/32/eng@2016-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.