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Court of AppealDismissedNotice of motion dated 29th June 2021 in intended appeal (Constitutional Petition No. E425 of 2020 consolidated with Constitutional Petition No. E014 of 2021)· [2021] KECA 83 (KLR)

Sonko v Clerk County Assembly of Nairobi City & 11 others (Civil Application E228 of 2021) [2021] KECA 83 (KLR)

Court of Appeal of Kenya
22 October 2021
3,686 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal (W. Karanja, J. Mohammed and J. Lesiit, JJA) on a notice of motion dated 29th June 2021 brought by Hon. Mike Mbuvi Sonko under Rule 5(2)(b) of the Court of Appeal Rules. Sonko, who had been elected Governor of Nairobi City County in 2017 and impeached by the County Assembly and Senate in December 2020, sought conservatory orders restraining the swearing-in of Ann Kananu Mwenda as Governor pending his intended appeal against the High Court judgment of 24th June 2021 (Chitembwe, Korir & Okwany, JJ.) dismissing consolidated petitions challenging his impeachment. The Court first rejected a preliminary objection challenging its jurisdiction, holding that Rule 5(2)(b) extends to conservatory orders preserving the status quo, and distinguishing John N. Liboyi. On the merits of the motion, the Court accepted that the intended appeal was arguable on at least one bona fide ground - the participation of members of the County Assembly in the impeachment process - satisfying the first limb. However, the application failed on the nugatory and public interest limbs: the applicant had been out of office for at least ten months, any violation of his personal political rights could be vindicated by damages as in Stephen Mring'a Masomo, and there was no nexus between the orders sought and the impugned judgment, since the question of the 11th respondent's swearing-in was neither determined by the High Court nor a ground of appeal. The motion was dismissed with costs to the respondents. The High Court judgment itself was not disturbed at this interlocutory stage.

Key legal issues

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01

Jurisdiction under Rule 5(2)(b) where the High Court judgment contains no positive order capable of being stayed

Holding

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.

Reasoning

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.

p. 3
02

Whether the intended appeal is arguable

Holding

The intended appeal was arguable on at least one bona fide ground — the participation of members of the County Assembly in the impeachment process.

Reasoning

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.

p. 6
03

Whether the appeal would be rendered nugatory without the orders, and the public interest limb

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The application dated 29th June, 2021 is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 181
  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Chapter Eleven
  • County Governments ActSection 33
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 77

Cases cited (12)

  • John N. Liboyi v Board of Governors St John College
    [2009] eKLR
  • Njuguna S. Ndung'u v Ethics & Anti Corruption Commission & 3 others
    [2015] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Martin Nyaga Wambora v County Assembly of Embu & 6 Others
    (2015) eKLR
  • Martin Nyaga Wambora v Embu County Assembly & Others
    [2014] eKLR
  • Martin Nyaga Wambora v County Assembly of Embu & 37 Others
    [2015] eKLR
  • Martin Nyaga Wambora & 3 Others v Speaker Of The Senate & 6 Others
  • National Cereals & Produce Board versus Erad Suppliers & General Contractors Limited
    Nairobi Civil Application No. Nai 48 of 2012
  • Law Society of Kenya v Bloggers Association of Kenya & 6 others
    [2020] eKLR
  • Stephen Mring'a Masomo v County Government, Taita Taveta & 2 others
    [2016] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.