President Delivery Unit & 3 others v Katiba Institute [2019] KECA 713 (KLR)
The bottom line
#Kenya's Court of Appeal paused a ruling forcing government officials to release information about political adverts, protecting them from contempt while their appeal proceeds.
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 intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if a stay of execution is not granted
Key legal issues
#Whether the intended appeal raised arguable grounds
The court found that among the eight draft grounds, several were clearly arguable, including whether Article 35(1) is limited to natural persons and whether orders were properly granted against non-parties
The court restated that a single bona fide arguable ground suffices under Rule 5(2)(b). It examined the draft memorandum of appeal listing eight grounds and found that issues such as the scope of Article 35(1) to juristic persons, joinder of Jubilee Party, and possession of the information sought were not idle complaints or frivolous, but fit for full argument.
Whether the intended appeal would be rendered nugatory absent a stay
The apprehension that execution of the mandamus could culminate in contempt proceedings and threaten the applicants' personal liberty rendered the appeal nugatory if stay was denied
The respondent had filed an application seeking to have the applicants show cause why contempt proceedings should not commence. The court accepted that execution could lead to the applicants being held in contempt, and that where personal freedom and liberty are threatened, the Court will readily grant temporary protective stay orders pending the hearing of the appeal on merit.
Objection based on absence of a valid notice of appeal
The court declined to entertain the respondent's oral submission that no valid notice of appeal was on record, holding the proper recourse is a Rule 84 striking-out application
The court had itself seen a copy of the notice of appeal. More fundamentally, it held that alleged infractions of a notice of appeal are to be remedied by an application under Rule 84 of the Court of Appeal Rules seeking striking out, and not through oral submissions at the hearing of a Rule 5(2)(b) application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory principles, and a single bona fide arguable ground suffices
- An arguable appeal need not be one that must succeed; it is one that is not frivolous and deserves full argument
- Where personal freedom and liberty is threatened by execution, the Court will readily grant a stay pending appeal
- Alleged infractions in a notice of appeal must be raised by way of an application under Rule 84 for striking out, not through oral submissions
Court orders
#- 1.An order of stay of execution of the judgment and decree of 8th November 2017 granted until the appeal is lodged and heard
- 2.Costs to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Petition No. 468 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
In an application under Rule 5(2)(b) of the Court of Appeal Rules, an applicant must demonstrate the existence of what has come to be known as the twin principles: that the appeal he has presented or intends to present raises arguable points and; that the appeal or the intended appeal would be nugatory if the interim orders were to be denied
In considering whether an appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised
In the result, the application succeeds and an order of stay of execution of the judgment and decree of 8th November, 2017 granted until the appeal is lodged and heard
Costs will be in the appeal. Orders accordingly.
Issues in the judgment
#The ruling refers to the applicants as 'the appellants' when describing the interim order, although they are styled applicants in the cause title
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sang v Lagat & 2 others (Environment and Land Case E013 of 2024) [2026] KEELC 2245 (KLR)[2026] KEELC 2245 (KLR)22 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "President Delivery Unit & 3 others v Katiba Institute [2019] KECA 713 (KLR)", Case Analysis (2019). Civil Application No. 348 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/713/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.