Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others (Civil Application 31 of 2016) [2016] KECA 596 (KLR)
The bottom line
#Kenya's Court of Appeal paused Mutua's prosecution temporarily, but ruled it cannot stop the DPP and EACC from doing their lawful investigative work.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal to grant conservatory orders pending appeal
The Court held that it has jurisdiction under Rule 5(2)(b) read with Article 164(3) of the Constitution to grant interlocutory injunctive and conservatory orders, such power being an incidental or collateral power supporting its primary appellate purpose.
Guided by the Supreme Court in Board of Governors, Moi High School, Kabarak v Malcolm Bell, which held that excluding interlocutory applications to preserve the subject-matter of an appeal would diminish the court's capability to arrive at a just decision, and by decisions of the Court of Appeal itself, the Court concluded that the jurisdiction exists and extends to injunctions and stays of proceedings.
Arguability of the intended appeal
The intended appeal evinced arguable grounds, including whether a County Governor who is not the accounting officer can be held criminally liable for acts of the procurement Tender Committee during the transition period.
Applying the principle that a single arguable ground suffices and that an arguable ground need not succeed, the Court analysed the draft Memorandum of Appeal and the supporting affidavit and identified several arguable issues, some of which were matters of fact for the trial court. The first limb of the Rule 5(2)(b) test was satisfied.
Nugatory aspect and public interest
The intended appeal would not be rendered nugatory if conservatory orders were not granted, because the core issues in the Petition and the intended appeal concern the lawfulness of the respondents' exercise of mandate, not the arrest or prosecution of the applicant, and the trial court would still determine the threatened violation on the merits.
The Court reasoned that the Petition's determination was not dependent on whether the applicant was arrested or prosecuted, that the proper forum to evaluate evidence and defences is the trial court, and that in public interest the constitutional mandate of the DPP and EACC ought not to be curtailed absent proof of excess or abuse.
Independence of the Office of the DPP and judicial interference
It is not the work of courts to interfere with other State organs unless it is shown they violate the Constitution; granting the orders sought would violate Article 157(10) by imposing a restriction on the DPP's constitutional powers.
The Court examined Articles 157(4), (6), (10) and (11) and held the application was effectively an indirect request for the Court to consent to the DPP's investigation and prosecution. Intervention is warranted only where Article 157(11) is violated, which the applicant had to prove.
The Court's inherent jurisdiction notwithstanding dismissal of the application
Because the 1st and 2nd respondents had, notwithstanding the pendency of the Petition, preferred charges against the applicant, the Court invoked its inherent jurisdiction to suspend the charges and arraignment until the Petition's hearing date.
The Court held that allowing prosecution to proceed would breach the applicant's right to the protection of the law, undermine the authority of the High Court, bring the administration of justice into disrepute and render the petition futile. Rule 5(2)(b) is subordinate to the inherent jurisdiction and to the Constitution, permitting the conservatory order despite the dismissal of the application.
Legal principles established
#- The Court of Appeal has jurisdiction to hear, determine and grant interlocutory injunctive orders, conservatory reliefs and stay of proceedings pending appeal.
- In a Rule 5(2)(b) application, it is the intended appeal to the Court of Appeal that must be rendered nugatory, not proceedings pending before the trial court.
- A single arguable ground of appeal suffices in a Rule 5(2)(b) application, and an arguable ground need not be one that must succeed.
- A threat of arrest or arrest per se is not unconstitutional so long as due process of law is followed and the rights of the arrested person are observed.
- The Court may invoke its inherent jurisdiction, which is superior to Rule 5(2)(b), to issue conservatory orders suspending charges where prosecution during the pendency of a petition would undermine the authority of the High Court and render the petition futile.
- A court should not prohibit or injunct a State organ from exercising its constitutional and statutory mandate unless it is demonstrated that the State organ has acted in excess of its mandate.
Court orders
#- 1.The Court invoked the constitutional principles and the inherent jurisdiction of the Court and, in spite of the dismissal of the application, granted a conservatory order suspending the charges and the arraignment of the applicant until 27th May, 2016 when Petition No. 310 of 2014 is scheduled to be heard
- 2.Thereafter, the applicant is at liberty to move to the High Court and the High Court has liberty to make any further orders
- On appeal from
- High Court of Kenya at Nairobi
- Pet. No. 310 of 2016
- Jurisdiction invoked
- Rules 5(2)(b), 42, 43, 47 and 49 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9); Articles 159 and 164 of the Constitution, and the Court's inherent jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others (Civil Application 31 of 2016) [2016] KECA 596 (KLR)", Case Analysis (2016). Civil Application No. NAI. 31 of 2016 (UR 22/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/596/eng@2016-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.