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Court of AppealDismissedCivil Application (Supreme Court Rules) - Application filed 1st February 2019 seeking stay of execution of High Court Nairobi Constitutional Petition No. 307 of 2018· [2021] KECA 221 (KLR)

Attorney General v Law Society of Kenya & 3 others

Supreme Court of Kenya
5 November 2021
RNR. N. NambuyeWKW. KaranjaHOHannah Okwengu
406 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court threw out the Attorney General's bid to stop Justice Warsame from serving as a JSC Commissioner because he had already taken up the role.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Supreme Court of Kenya in Nairobi on an application filed on 1st February 2019 under Certificate of Urgency by the Attorney General. The applicant sought, in the main, a stay of execution of the judgment and orders of the High Court in Nairobi Constitutional Petition No. 307 of 2018 dated 18th January 2019, pending the hearing and determination of an intended appeal. In the alternative, it sought an injunction restraining Hon. Justice Mohamed Abdullahi Warsame from acting as or performing any duty as a Commissioner of the Judicial Service Commission arising from the High Court judgment. The application was supported by an affidavit of Njeri Wachira, Deputy Solicitor General, on nine grounds. It was opposed by the 1st, 2nd and 4th respondents, with no response from the 3rd respondent. At the hearing on 3rd April 2019 the Court found that the 3rd respondent had not been served and adjourned the matter for service. Thereafter, the 3rd respondent took up his position as a Commissioner of the Judicial Service Commission and continued to hold it. The Court accordingly held that the application had been overtaken by events and was moot, and dismissed it with no order as to costs. The merits of the intended appeal were not determined and the High Court judgment was neither affirmed nor reversed.

Key legal issues

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Mootness of an interlocutory application for stay and injunction

Holding

The Court held that where the substance of the relief sought has already occurred, the application is overtaken by events and moot, and must be dismissed

Reasoning

The applicant sought to preserve the status quo by preventing the 3rd respondent from acting as a JSC Commissioner pending appeal. When the matter came up for hearing the Court directed service on the 3rd respondent. In the intervening period the 3rd respondent assumed office and continued to hold it. There was therefore no live controversy left to preserve by stay or injunction, and the Court dismissed the motion without deciding the merits of the intended appeal.

p. 2

Legal principles established

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    Court orders

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    1. 1.Dismissal of the application for stay of execution and injunction
    2. 2.No order as to costs
    On appeal from
    High Court of Kenya, Nairobi
    Constitutional Petition No. 307 of 2018
    Jurisdiction invoked
    Applicant invoked the Court's jurisdiction seeking stay of execution and injunction pending appeal; the judgment does not state the specific constitutional or statutory provision relied upon.

    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, "Attorney General v Law Society of Kenya & 3 others", Case Analysis (2021). Civil Application (Supreme Court Rules) - Application filed 1st February 2019 seeking stay of execution of High Court Nairobi Constitutional Petition No. 307 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/221/eng@2021-11-05

    Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.