Evans Odhiambo Kidero & 9 others v Chief Magistrate of Milimani Law Courts & 4 others [2020] KECA 282 (KLR)
The bottom line
#The Court of Appeal refused Dr. Kidero's bid to pause a High Court judgment and block EACC searches because having an arguable appeal alone is not enough.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the appeal under Rule 5(2)(b)
The Court was satisfied that the applicants met the first twin principle, the existence of an arguable appeal, which does not depend on the appeal's ultimate success.
The Court considered the memorandum of appeal against the Rule 5(2)(b) principles as summarised in Stanley Kangethe v Tony Ketter & Others [2013] eKLR, which it fully adopted. On that test it found the applicants had demonstrated an arguable appeal irrespective of the appeal's ultimate success. However, satisfying this first limb alone is not enough; both limbs must be met for the application to succeed.
Whether the appeal would be rendered nugatory absent the orders sought
The Court found the nugatory-principle not satisfied and declined the application on that basis.
The applicants did not controvert the EACC's averment that the criminal investigations, prosecutions, asset-recovery suit and related proceedings had not yet commenced and were unlikely to be concluded before the already-filed appeal was heard and determined. Since no irreversible consequence would occur in the interim, the second prerequisite failed. Because both prerequisites must be satisfied, the application failed notwithstanding arguability.
Legal principles established
#- An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy both twin principles - an arguable appeal and that the appeal will be rendered nugatory absent the orders sought; satisfying only one is insufficient.
- The arguability threshold requires demonstration of an arguable appeal irrespective of whether it would ultimately succeed.
Court orders
#- 1.The Notice of Motion dated 19th June, 2020 is declined
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya
- Nairobi Petition No. 25 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Odhiambo Kidero & 9 others v Chief Magistrate of Milimani Law Courts & 4 others [2020] KECA 282 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 242 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/282/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.