Kithinji Kiragu v Dennis Mugendi & 6 others [2017] KECA 447 (KLR)

Court of Appeal

30 June 2017

RNR. N. Nambuye SKS. Gatembu Kairu AMA. K. Murgor

817 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~3 min to read original · ~4 min brief

The bottom line

Kenya's Court of Appeal dismissed an appeal against nullification of PNU nominations held in breach of a court stay order, confirming that defying court orders invalidates political nominations.

What this practically means

Executive summary

This was an appeal, with a cross-appeal, arising from the political parties nomination disputes for Embu County in the run-up to the 2017 general elections. The 1st to 4th respondents successfully petitioned the Political Parties Disputes Tribunal, which on 2nd May 2017 declared the PNU nomination exercise of 22nd April 2017 null and void and ordered a repeat nomination within 48 hours. PNU appealed to the High Court, which on 5th May 2017 upheld the Tribunal's judgment, directed a repeat nomination within 48 hours, but stayed execution of its judgment until Monday 8th May 2017. PNU nonetheless conducted repeat nominations on 7th May 2017, during the pendency of the stay, at which the appellant was nominated as PNU's gubernatorial candidate. On application by the 1st to 4th respondents, Mwongo, J on 7th June 2017 found the conduct to be 'an act of chicanery and in direct breach' of the stay, declared the 7th May nominations illegal and null and void, and found PNU and its Chief Executive in contempt. The appellant appealed, contending his nomination was wrongly nullified and that his fair-hearing rights under Articles 47, 48 and 50(1) were violated; the 5th and 6th respondents cross-appealed. The Court of Appeal (Nambuye, Gatembu Kairu and Murgor, JJA) delivered orders on 30th June 2017 dismissing both the appeal and the cross-appeal, with no orders as to costs, and indicated that full reasons would follow on 28th July 2017. The copy before the analyst contains only the orders, not the reserved substantive reasons.

Key legal issues

Conduct of nominations during the pendency of stay orders

Holding

The Court upheld the High Court's finding that conducting the repeat nomination on 7th May 2017 while the stay was in operation was a direct breach of the court's order, justifying nullification of the nominations.

Reasoning

The PPDT had ordered a repeat nomination; the High Court upheld that order and stayed its own judgment until Monday 8th May 2017. PNU nonetheless held nominations on 7th May 2017 during the pendency of the stay, at which the appellant was nominated. The High Court found this to be deliberate chicanery and a direct breach, declared the nominations illegal and null and void, and the Court of Appeal saw no basis to interfere with that exercise of discretion.

p. 2

Alleged violation of the appellant's right to be heard (Articles 47, 48, 50(1))

Holding

The appeal on this ground was dismissed; the Court gave reasons to follow on 28th July 2017 but dismissed the appeal in the interim orders delivered on 30th June 2017.

Reasoning

The appellant complained that he was directly affected by the orders of 7th June 2017 but was not afforded a hearing. The Court considered the appeal and cross-appeal together with counsel's submissions and authorities, and dismissed both the appeal and the cross-appeal, reserving full reasons for delivery on 28th July 2017. No separate reasoning on the hearing-rights issue appears in the judgment as delivered on 30th June 2017.

p. 2

Legal principles established

A party who conducts a nomination exercise while a stay of the judgment ordering a repeat nomination is in operation acts in breach of the court's order, and the resulting exercise may be declared illegal, null and void.

Court orders

1.The appellant's appeal be and is hereby dismissed
2.The cross-appeal by the 5th and 6th respondents be and is hereby dismissed
3.There be no orders as to costs

On appeal from: High Court of Kenya at Nairobi; Election Petition Appeal No. 1 of 2017
Jurisdiction invoked: First appeal / appeal from High Court sitting on appeal from the Political Parties Disputes Tribunal (statutory appellate jurisdiction; no specific constitutional or statutory provision is cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kithinji Kiragu v Dennis Mugendi & 6 others [2017] KECA 447 (KLR)", Case Analysis (2017). Civil Appeal No. 186 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/447/eng@2017-06-30

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