Sonko v Clerk County Assembly of Nairobi City & 11 others (Civil Application E228 of 2021) [2021] KECA 83 (KLR)
The bottom line
#The Court of Appeal dismissed Mike Sonko's bid to block Ann Kananu Mwenda's swearing-in as Nairobi Governor, finding his appeal would not be rendered pointless.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under Rule 5(2)(b) where the High Court judgment contains no positive order capable of being stayed
The Court has jurisdiction to consider conservatory orders preserving the status quo pending appeal under Rule 5(2)(b); the Liboyi distinction on absence of notice of appeal did not oust jurisdiction.
The preliminary objection argued there was no order capable of being stayed. The Court held its Rule 5(2)(b) jurisdiction extends to conservatory orders preserving the status quo, citing Njuguna S. Ndung'u and Gatirau Peter Munya. John N. Liboyi was distinguished because in that case no notice of appeal had been filed, whereas here one existed, so the objection failed.
Whether the intended appeal is arguable
The intended appeal was arguable on at least one bona fide ground — the participation of members of the County Assembly in the impeachment process.
Applying Trust Bank v Investech and Stanley Kang'ethe Kinyanjui, the Court found a single bona fide arguable ground suffices. The question of MCAs' participation in the impeachment process was arguable and sufficient to satisfy the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory without the orders, and the public interest limb
The appeal would not be rendered nugatory: the applicant had been out of office for at least ten months, his political rights are personal and compensable by damages, and the orders sought lacked nexus with the impugned judgment.
The Court relied on Stephen Mring'a Masomo, holding that since the applicant had already been removed, any vindication of his personal political rights under Article 38 could be achieved by damages. Wambora was distinguished because there the applicant was still in office. Further, the swearing-in of the 11th respondent was not an issue in the High Court or a ground of appeal, so no nexus existed. The application failed the threshold.
Legal principles established
#- The twin principles for grant of relief under Rule 5(2)(b) are arguability of the appeal and that it will be rendered nugatory; both must be satisfied conjunctively, and public interest may be an additional consideration without displacing the nugatory limb.
- A single bona fide arguable ground suffices for the arguability limb, but the applicant must still establish the nugatory limb; where removal from office has already occurred and rights are personal, damages may adequately compensate.
Court orders
#- 1.The application dated 29th June, 2021 is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya (Employment and Labour Relations Court petition; consolidated petitions heard by High Court)
- Constitutional Petition No. E425 of 2020 (consolidated with Petition No. E014 of 2021)
- 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, "Sonko v Clerk County Assembly of Nairobi City & 11 others (Civil Application E228 of 2021) [2021] KECA 83 (KLR)", Case Analysis (2021). Notice of motion dated 29th June 2021 in intended appeal (Constitutional Petition No. E425 of 2020 consolidated with Constitutional Petition No. E014 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/83/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.