Kithinji Kiragu v Dennis Mugendi & 6 others
The bottom line
#Kenya's Court of Appeal confirmed that nobody, even an innocent candidate, can keep a benefit gained from ignoring a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant, claiming he was not heard and had no notice of the stay order, could challenge the nullification of the 7th May 2017 nominations
The appeal was dismissed: the High Court correctly nullified the nomination exercise conducted in breach of the stay order, and the appellant could not benefit from that breach regardless of whether he had knowledge of the order.
The Court accepted there was doubt over service of the contempt motion on the appellant and made no finding that he knew of the stay order. However, the 6th respondent resolved to conduct the repeat nominations with full knowledge that the order requiring fresh nominations had been stayed. Drawing on Commercial Bank of Africa Ltd v Isaac Kamau Ndirangu, the Court resolved the tension between natural justice and judicial authority in favour of the latter: transactions in breach of a court order are void, so the appellant, as beneficiary of the illegal nominations, could not retain them.
Whether the 6th respondent breached the stay order of 5th May 2017 by conducting repeat nominations on 7th May 2017
Yes; the 6th respondent deliberately conducted the repeat nomination while the stay was in force, and the High Court rightly so found.
A replying affidavit of a life member of the 6th respondent deposed that the National Elections Board met to analyse the court order and resolved to repeat the nominations on 7th May 2017, meeting with the returning officers and candidates. This demonstrated that the 6th respondent proceeded with full knowledge that the order for repeat nominations had been stayed until 8th May 2017. The learned Judge therefore could not be faulted for finding a direct breach.
Legal principles established
#- A party cannot benefit from or retain an advantage obtained through a transaction or process undertaken in breach of a court order, even where that party claims ignorance of the order or lack of a hearing.
- Where the right to a fair hearing conflicts with the need to maintain the dignity and authority of the courts in the face of flouted orders, the latter prevails.
Court orders
#- 1.Appeal of the appellant dismissed
- 2.Cross-appeal of the 5th and 6th respondents dismissed
- 3.Ruling of the High Court (Mwongo, J) of 7th June 2017 upheld, including the declaration that the nominations conducted on 7th May 2017 were null and void
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition Appeal No. 1 of 2017
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal Rules; reasons delivered under Rule 32(5) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithinji Kiragu v Dennis Mugendi & 6 others", Case Analysis (2017). Civil Appeal No. 186 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/378/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.