Attorney-general & 1 other v Katiba Institute & 7 others
The bottom line
#The Court of Appeal paused the High Court order requiring the President to appoint six judges, meaning no appointments happen until the full appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeals
Both intended appeals were arguable, not frivolous, as the draft memoranda raised issues warranting the Court's interrogation and the respondents' response.
The Court examined the draft memoranda of appeal filed by both applicants and concluded that the grounds, though not restated, were worthy of the Court's interrogation and would warrant a response from the respondents. The Court reiterated that an arguable appeal need not succeed; a single bona fide arguable ground suffices, and no definitive findings on fact or law are made at the interlocutory stage.
Nugatory-ness of the intended appeals absent stay
The nugatory ingredient was satisfied given the Supreme Court's pronouncement in Kenya Vision 2030 Delivery Board and the pendency of Civil Appeal No. 286 of 2020 over the same issues.
The Court accepted the undisputed contention that the Supreme Court had already expressed itself on the binding nature of recommendations, and that Civil Appeal No. 286 of 2020, pending before the same Court, concerned the same issues. Given the constitutional insulation of Judges once appointed and the irreversibility of swearing in the six nominees, execution of the judgment would render the intended appeals nugatory.
Cumulative satisfaction of both limbs and grant of conservatory orders
Both prerequisites having been satisfied, the Court found basis for granting the relief sought in both consolidated applications.
The Court held that its jurisdiction under Rule 5(2)(b) was properly invoked as notices of appeal were in place. Both limbs - arguability and nugatory-ness - were demonstrated, and the Court exercised its original, independent and discretionary mandate to grant conservatory orders staying execution of the High Court judgment pending the intended appeals, with directions for expeditious disposal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - an arguable appeal and that the appeal will be rendered nugatory absent stay - before relief can be granted.
- Demonstration of even one arguable point suffices to satisfy the arguability limb of Rule 5(2)(b).
- Whether an appeal will be rendered nugatory turns on whether what is sought to be stayed is irreversible, or if reversible, whether damages would reasonably compensate the aggrieved party.
Court orders
#- 1.In Civil Application No. 365 of 2021, a conservatory order staying the execution of the judgment and orders of the High Court in Nairobi Petition No. 206 of 2020 made on 21st October, 2021, granted pending filing, hearing and determination of the intended appeal
- 2.In Civil Application No. 368 of 2021, a conservatory order staying the execution of the judgment and orders of the High Court in Nairobi Petition No. 206 of 2020 made on 21st October, 2021, granted pending filing, hearing and determination of the intended appeal
- 3.The matter to be mentioned before the President of the Court within fourteen (14) days of delivery of the ruling for directions on the expeditious disposal of the intended appeals
- 4.Costs of both applications to abide the outcome of the intended appeals
- On appeal from
- High Court of Kenya at Nairobi, Constitutional and Human Rights Division
- Petition No. 206 of 2020; Katiba Institute vs The President of the Republic of Kenya & 2 Others; Judicial Service Commission & 3 Others
- Jurisdiction invoked
- Article 164(3) of the Constitution of Kenya; sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney-general & 1 other v Katiba Institute & 7 others", Case Analysis (2021). Civil Applications Nos. E365 of 2021 and E368 of 2021 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/166/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.