Kaltuma Abdulahim Maalim v Saadia Ahmed Mumin & 3 others
The bottom line
#Kenya's Court of Appeal refused to pause a Wajir County Assembly seat court battle, confirming that an upcoming appeal alone does not justify staying proceedings.
What this practically means
#Executive summary
#Key legal issues
#Twin principles governing rule 5(2)(b) applications
The jurisdiction under rule 5(2)(b) is original and discretionary, guided by the settled twin principles of arguability and nugatory-ness.
The court adopted its prior statement in Ishmael Kagunyi Thande v Housing Finance Kenya Ltd, restating that the rule 5(2)(b) jurisdiction is both original and discretionary. The applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent the stay or injunction sought. Both limbs are cumulative requirements for the grant of stay of proceedings.
Whether the intended appeal would be rendered nugatory absent stay
The applicant failed to establish the nugatory limb; the dismissal of the preliminary objection on jurisdiction and the continuation of the judicial review proceedings would not render any appeal nugatory because she retains appellate recourse.
The applicant argued that if the High Court judicial review, founded on a dispute properly sounding in an election petition, were to proceed, her intended appeal would be nugatory. The court disagreed, reasoning that even a conclusion of the proceedings below would leave the applicant with recourse by way of appeal. With the second limb unsatisfied, the court did not examine arguability and dismissed the motion.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two well-settled principles: that the appeal or intended appeal is arguable, and that unless stay or injunction is granted the success of the appeal will be rendered nugatory.
- Where the nugatory limb of the rule 5(2)(b) test fails, the court need not consider whether the appeal is arguable.
- Proceedings in the High Court proceeding to conclusion does not by itself render an intended appeal nugatory, since a party retains a right of recourse by way of appeal or otherwise.
Court orders
#- 1.The Notice of Motion dated 20th December 2017 is dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Appl. No. 576 of 2017
- Jurisdiction invoked
- Rules 5(2)(b) and 47 of the Court of Appeal Rules (application for stay of proceedings pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaltuma Abdulahim Maalim v Saadia Ahmed Mumin & 3 others", Case Analysis (2021). Civil Application No. 304 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/508/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.