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Court of AppealDismissedNot stated in the judgment as provided· [2016] KECA 293 (KLR)

Waititu & 4 others v Attorney General & 12 others (Civil Application 140 (UR 110/2016) of 2016) [2016] KECA 293 (KLR)

Court of Appeal of Kenya
29 July 2016
AVAlnashir VisramGKG. B. M. KariukiFSF. Sichaie
1,979 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block the CORD protests at IEBC offices, ruling that mere apprehension cannot override the constitutional right to demonstrate.

What this practically means

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Executive summary

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This was an application under section 3A(1) & (2) of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules in which Members of the National Assembly sought conservatory orders, pending an intended appeal, restraining Cord coalition leaders and allied parties from intimidating IEBC Commissioners or storming the Commission's offices. The application followed a High Court ruling of 6 June 2016 by Onguto J which, having earlier granted exparte interim orders through Lenaola J on 29 April 2016, found no prima facie case against most respondents and instead issued a mandatory order compelling the police to ensure security during notified demonstrations. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Keter, the Court of Appeal found the intended appeal arguable, since the High Court's treatment of the evidence, bias, costs and discretion were all arguable points. However, the court held the applicants had failed on the nugatory limb: their apprehensions were insufficient to justify limiting the article 37 freedoms, and there was no indication the police could not maintain law and order during demonstrations under the Constitution and the Public Order Act. The court emphasised that organisers of demonstrations bear a duty to ensure they are lawful and orderly. The application was dismissed with no orders as to costs, there having been no appearance for the 2nd to 8th and 10th respondents.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable: whether the learned Judge failed to consider evidence on record, was biased, erred on costs and failed to exercise his discretion properly were arguable points.

Reasoning

The court perused the draft memorandum of appeal without making final findings and identified several grounds warranting consideration in the main appeal. This satisfies the first limb of the rule 5(2)(b) test established in Stanley Kangethe Kinyanjui v Tony Keter.

p. 4
02

Whether the appeal would be rendered nugatory without conservatory orders

Holding

The applicants failed to satisfy the nugatory limb; their apprehensions did not warrant limitation of the freedom to demonstrate, and there was no indication the police would be unable to maintain law and order.

Reasoning

The court held that apprehensions of illegalities were insufficient to limit the article 37 freedom. Article 21(1) obliges the State and State organs to observe, respect, promote and fulfil rights; nothing indicated the police could not enforce law and order under the Constitution and the Public Order Act. Organisers, however, remain under a duty to demonstrate lawfully.

p. 5
03

The scope and limits of the freedom of assembly, demonstration and picketing under article 37

Holding

The right under article 37 is universal and inalienable and can only be limited under article 24; organisers must ensure demonstrations do not violate others' freedoms or result in unrest, incitement, hate speech or advocacy of ethnic hatred.

Reasoning

Relying on article 37 and article 24, and adopting Nyamu J's observation in Kenya Bus Services Ltd v Attorney General that rights are inalienable while restrictions are challengeable on reasonableness and proportionality, the court held that demonstrations must be peaceful and respect the rights of others.

p. 5

Legal principles established

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  • On an application under rule 5(2)(b), the applicant must satisfy both twin principles of arguability and nugatory-ness, and the nugatory limb must be given its full meaning.
  • An arguable appeal need only raise a single bona fide arguable ground; it need not necessarily succeed.

Court orders

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  1. 1.The application lacks merit and is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A(1) & (2)
  • Court of Appeal RulesRules 5(2)(b), 41 & 47
  • Constitution of Kenya, 2010Article 37
  • Constitution of Kenya, 2010Article 24(1)(d)
  • Constitution of Kenya, 2010Article 21(1)
  • Public Order ActNot specified

Cases cited (2)

  • Stanley Kangethe Kinyanjui -vs- Tony Keter & Others
    [2013] eKLR
  • Kenya Bus Services Ltd. & 2 Others -vs- Attorney General
    (2005) 1 KLR 787
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Section 3A(1) & (2) of the Appellate Jurisdiction Act and rules 5(2)(b), 41 & 47 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, "Waititu & 4 others v Attorney General & 12 others (Civil Application 140 (UR 110/2016) of 2016) [2016] KECA 293 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/293/eng@2016-07-29

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