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Court of AppealAllowedCivil Application No. 348 of 2018

President Delivery Unit & 3 others v Katiba Institute [2019] KECA 713 (KLR)

Court of Appeal
24 May 2019
1,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under Rule 5(2)(b) of the Court of Appeal Rules by the President Delivery Unit and three senior state officers seeking a stay of execution of a judgment of the High Court (Mwita, J) dated 8th November 2017. The High Court had allowed a petition by Katiba Institute holding that the refusal to supply information about government achievement advertisements under the hashtags #GOKDelivers and #Jubileedelivers violated the right of access to information under Article 35 of the Constitution, and had issued declarations and an order of mandamus compelling the applicants to provide the information at their own cost. The Court of Appeal restated the twin principles governing Rule 5(2)(b) applications: the intended appeal must be arguable and, if successful, must not be rendered nugatory if stay is denied. Applying Stanley Kangethe Kinyanjui v Tony Ketter, it found the eight draft grounds of appeal arguable, including whether Article 35(1) extends to juristic persons and whether the judge erred in making orders affecting Jubilee Party, a non-party. On the nugatory limb, the court accepted that execution of the mandamus could expose the applicants to contempt proceedings and loss of personal liberty, justifying temporary protection. The respondent's oral objection that no valid notice of appeal was on record was declined, the proper remedy being a striking-out application under Rule 84. The application succeeded and stay of execution was granted until the appeal is lodged and heard, with costs in the appeal. The court made no definitive findings on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if a stay of execution is not granted

Key legal issues

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01

Whether the intended appeal raised arguable grounds

Holding

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

Reasoning

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.

p. 2
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

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

Reasoning

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.

p. 2
03

Objection based on absence of a valid notice of appeal

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Costs to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority
majority
majority
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

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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
p. 1Twin principles for Rule 5(2)(b) applications
In considering whether an appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised
p. 1Arguability threshold
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
p. 2Final orders - stay granted
Costs will be in the appeal. Orders accordingly.
p. 2Costs order

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.