Nathif Jama Adan v Director of Public Prosecutions & 9 others [2016] KECA 374 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot get an injunction in judicial review cases, and it refused to stop a governor's prosecution.
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 Court has jurisdiction under Rule 5(2)(b) to grant a conservatory order/injunction in a matter arising from a dismissed judicial review application
- 2.Whether an order of injunction is obtainable in a judicial review matter
- 3.Whether the applicant has demonstrated an arguable appeal
- 4.Whether the intended appeal would be rendered nugatory if the order for stay is not granted
Key legal issues
#Whether the Court can grant an injunction in a judicial review matter
No. Injunction is a private law remedy (though capable of serving public law), but in the context of judicial review it is not available either in the High Court under Section 8 of the Law Reform Act or in the Court of Appeal on appeal, since Section 3(3) of the Appellate Jurisdiction Act requires the Court to apply the law applicable in the High Court.
Adopting its earlier decision in Cortec Mining Kenya Limited, the court reasoned that the High Court in judicial review under Section 8 of the Law Reform Act can grant only the three prerogative remedies of mandamus, prohibition and certiorari; an injunction is not authorised by Section 8. Because Section 3(3) of the Appellate Jurisdiction Act obliges the appellate court to apply the law applicable in the High Court, the injunction sought would violate that provision and would impermissibly revive litigation already determined.
Whether the applicant demonstrated an arguable appeal and a nugatory aspect warranting conservatory orders
No. On the contested facts the applicant did not show with certainty that the intended prosecution was mala fides; the law affords sufficient safeguards in a criminal trial, and the appeal would not be rendered nugatory if stay were refused.
The court observed divergent Court of Appeal positions on staying criminal prosecutions but endorsed the line that intervention is warranted only for trumped-up charges, unlawfulness, malice or harassment. Here the applicant's allegation that he was statutorily barred from the Tender Committee was contested by the respondents' assertion that he bulldozed the process. Such contested facts did not establish mala fides; stigma could be cured on acquittal, appeal or a malicious prosecution suit.
Whether Rule 5(2)(b) relief is available following dismissal of a judicial review application
Although Rule 5(2)(b) applies to judicial review matters, where the judicial review application has been dismissed there is no positive order capable of execution and therefore nothing to stay or conserve.
Following Devani v Joseph Ngindari and William W. Wahome, the court held that a dismissal grants the respondents no positive order enforceable by execution; granting the relief sought would indirectly revive the dismissed application, which the Court cannot do before hearing the appeal. The applicant's attempt to characterise the Motion as seeking conservatory orders distinct from stay did not avail.
Legal principles established
#- Rule 5(2)(b) of the Court of Appeal Rules applies in judicial review matters, and a conservatory order sought thereunder is not distinct from an application for stay.
- An injunction is not an available remedy in judicial review proceedings, either in the High Court or in the Court of Appeal on appeal under the Law Reform Act.
- Where a judicial review application has been dismissed, there is no positive order capable of execution and thus nothing to stay or conserve pending appeal.
- The Court of Appeal will not stay criminal proceedings unless it is shown the prosecution is trumped up, not undertaken according to law, actuated by malice or meant to harass; contested allegations of mala fides do not meet that threshold.
- For a Rule 5(2)(b) application, a single arguable point suffices and it need not be one that will necessarily succeed, but it must not be frivolous.
Court orders
#- 1.The Motion dated 6th May 2016 seeking an injunction pending the hearing and determination of an intended appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 225 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution, injunction or stay of further proceedings pending appeal)
Relief refused
#Temporary injunction restraining the 1st and 10th respondents from causing the arrest and/or charging of the applicant pending the intended appeal
No injunction is available in judicial review proceedings; the applicant failed to demonstrate an arguable appeal or that the appeal would be rendered nugatory; the criminal courts afford sufficient safeguards
Costs
The motion was dismissed with costs (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 for the above reasons that we have come to the conclusion that this motion is for dismissal. It is hereby dismissed with costs.
However, in the context of judicial review, it is not available either in the High Court or in this Court on appeal under the Law Reform Act.
By dismissing the judicial review application, the superior court did not thereby grant any positive order in favour of the respondents which is capable of execution.
It is only in instances where there are trumped up charges, or the prosecution is not undertaken according to law, or it is actuated by malice and meant to harass the applicant, that the Court of Appeal has intervened by dint of its inherent jurisdiction
Accordingly, In our view, the appeal would not be rendered nugatory if an order for stay is not granted.
Issues in the judgment
#The judgment records the plenary hearing as having taken place on 24th May 2015, which precedes the High Court judgment of 19th April 2016 and the Notice of Appeal of 26th April 2016; the date appears to be a typographical error for 2016.
The judgment refers inconsistently to the procurement source as 'Kenya Road Cross' and 'Kenya Red Cross'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathif Jama Adan v Director of Public Prosecutions & 9 others [2016] KECA 374 (KLR)", Case Analysis (2016). Civil Application No. NAI. 113 of 2016 (UR 90/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/374/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.