Ndiritu Muriithi v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 211 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block enforcement of a Sh5 million costs order, confirming stay applications must prove both an arguable appeal and real irreparable harm.
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 applicant has an arguable appeal (or intended appeal) against the High Court judgment
- 2.Whether the intended appeal would be rendered nugatory absent stay of execution
Key legal issues
#Test for stay pending appeal under Rule 5(2)(b)
The applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent stay; both are conditions precedent.
The Court restated the settled principles from Stanley Kangethe Kinyanjui v Tony Ketter, including that the discretion is wide and unfettered provided it is just, that a single bona fide arguable ground suffices, that the Court must not make definitive findings at that stage, and that 'nugatory' includes not only worthless but trifling, turning on reversibility or compensability by damages.
Arguability of the intended appeal
The intended appeal was arguably not frivolous, as the rights of an independent candidate vis-a-vis a presidential candidate of another political party may not have been defined.
The Court accepted that one bona fide arguable ground suffices. The unresolved question of an independent candidate's rights against a party presidential candidate (including alleged plagiarism involving use of the presidential candidate's photograph) was held arguable. However, arguability alone did not satisfy the twin test.
Nugatory aspect - impecuniosity of the 3rd respondent
The claim that the 3rd respondent could not repay costs failed because it was raised only in oral submissions and not in the supporting affidavit, denying him a chance to respond.
The applicant's affidavit was silent on the 3rd respondent's inability to repay the Kshs.5 million taxed costs; the assertion of impecuniosity in counsel's oral address had no supporting basis and prejudiced the 3rd respondent. Regarding the 1st and 2nd respondents, difficulty in recovering costs was held not equivalent to inability to pay.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the twin principles of arguability and that the appeal will not be rendered nugatory, as conditions precedent to the exercise of the discretion to grant stay.
- Assertions of a respondent's inability to repay costs deposed for the first time in oral submissions, without notice in the supporting affidavit, will be disregarded as the other party is denied an opportunity to respond.
Court orders
#- 1.The notice of motion dated 21st March 2018 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Judicial Review Application No. 133 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay pending appeal)
Relief refused
#Stay of execution of the judgment/decree of the High Court delivered on 1st August 2017 pending intended appeal
The applicant failed to satisfy both limbs of the Rule 5(2)(b) test - arguability and nugatory aspect
Injunction restraining attachment of the applicant's moveable property
Same failure to establish the twin principles; also undertakings by 1st and 2nd respondents not to execute and existence of conditional stay in the High Court reference
Costs
The motion is dismissed with costs (costs of the application awarded 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.
Accordingly, the motion is hereby dismissed with costs.
An applicant must satisfy the Court on both the twin principles.
On whether the appeal is arguable, it is sufficient if a single bona fide arguable ground of appeal is raised.
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.
we find that the applicant has not satisfied both the two principles being conditions precedent before this Court exercises its discretion in granting an order for stay.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiritu Muriithi v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 211 (KLR)", Case Analysis (2018). Notice of motion dated 21st March 2018 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/211/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.