Attorney General & another v Nafula & 5 others; Attorney General (Interested Party) (Civil Application E121 & & E120 of 2021 (Consolidated)) [2021] KECA 647 (KLR)
The bottom line
#Kenya's Court of Appeal paused orders blocking the Chief Justice recruitment, ruling that courts must first resolve challenges to their own jurisdiction before issuing any orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Attorney-General, having been an interested party before the High Court, has locus standi to file an appeal to the Court of Appeal (preliminary objection by the 4th respondent)
- 2.Whether the intended appeals are arguable
- 3.Whether the intended appeals would be rendered nugatory if stay is not granted
- 4.Whether the public interest favours the grant of stay of the High Court's conservatory orders pending appeal
Key legal issues
#Locus standi of the Attorney-General as an interested party to appeal
The preliminary objection fails; the Attorney-General has locus to file the appeal.
The 4th respondent argued, relying on the Fugicha decision, that an interested party lacks capacity to appeal. The Court found no relevant authority for that novel proposition, held Fugicha of little aid, and invoked rule 75(1) of the Court of Appeal Rules permitting any person who desires to appeal to give notice in writing.
Arguability of the intended appeals
The appeals are eminently arguable because the High Court issued drastic conservatory orders without first disposing of the objection to its jurisdiction.
The Court reiterated the Lillian 's' dictum that jurisdiction is everything and that proceedings conducted without jurisdiction are null and void. Failing to pronounce on a strenuously argued jurisdictional objection based on Article 251 before granting conservatory orders was a standout error rendering the appeals arguable.
Nugatory aspect and public interest
The public interest and the cause of justice are best served by granting stay, since allowing conservatory orders issued without jurisdiction to stand risks invalidity and a constitutional crisis from unmet statutory timelines.
The Court weighed the 6-month limit on an Acting Chief Justice, the statutory timelines for appointment, and the prospect that the impugned orders, being issued without jurisdiction, would be null and void ab initio. It declined to act on unproven fears of manipulation, holding the rule of law cannot be achieved by breach of law.
Permanence of a completed recruitment process
Completion of the recruitment process does not immunize any procedural or substantive wrong; the High Court may still invalidate a concluded appointment.
To allay the respondents' fear that allowing the process to conclude would render their petitions academic, the Court emphasised Commissioners' constitutional responsibility and that an appointment, even once made and sworn, can be invalidated if illegality is proved.
Legal principles established
#- A properly-joined party to first-instance proceedings, including an interested party such as the Attorney-General, is not handicapped from filing an appeal if aggrieved.
- An applicant under Rule 5(2)(b) must show an arguable appeal - a single bona fide point suffices - and that the appeal would be rendered nugatory absent stay; public interest is an additional consideration.
- A court seized of a challenge to its jurisdiction must decide that question before issuing consequential orders such as conservatory orders.
Court orders
#- 1.The conservatory orders granted by the High Court on 21st April 2021 barring the continuation of the recruitment process for the Chief Justice and the commencement of the process of appointment of a Judge of the Supreme Court stayed pending the hearing and determination of the intended appeals
- 2.Any further proceedings in the consolidated petitions at the High Court stayed pending the hearing and determination of the intended appeals
- 3.Records of appeal to be filed and served within thirty (30) days, failing which the stay orders shall automatically lapse
- 4.The intended appeals to be fast-tracked for hearing expeditiously on high priority
- 5.Costs shall be in the intended appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Milimani
- Three consolidated petitions (including Petition No. E114 of 2021)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
- Consolidated with
- Two other rule 5(2)(b) applications consolidated with E121 of 2021 (lead file)
Relief refused
#Preliminary objection by the 4th respondent challenging the Attorney-General's locus to appeal
A properly-joined party at first instance is not barred from appealing if aggrieved; no relevant authority supported the objection
Costs
Costs shall be in the intended appeals.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The conservatory orders granted by the High Court on 21st April 2021 barring the continuation of the recruitment process for the Chief Justice and the commencement of the process of appointment of a Judge of the Supreme Court be and are hereby stayed pending the hearing and determination of the intended appeals.
Jurisdiction is everything. Without it a court has no power to make one more step.
The threshold for arguability is therefore quite low. Moreover, a single arguable point sufices to satisfy the requirement.
We are satisfied that, all things considered, the public interest and the cause of justice will best be served by grant of the applications.
As Judges, we are bereft of the luxury of decisional abstention and cannot shirk the responsibility to decide, no matter the stakes.
Issues in the judgment
#The judgment states that JSC and the Hon. Attorney General filed the applications, but a preliminary objection was mounted by the 4th respondent against only the Attorney-General's appeal on capacity grounds; the record also refers to the applicants including Prof. Olive Mugenda whose supporting affidavit supports the applications though she is not listed among the movants in the opening paragraphs.
The precise case numbers of the consolidated applications are not consistently stated in the text; only E121 of 2021 is expressly identified as the lead file.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chief of the Kenya Defence Forces & another v Arigele & 18 others (Civil Application E032 of 2025) [2026] KECA 326 (KLR)[2026] KECA 326 (KLR)27 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Nafula & 5 others; Attorney General (Interested Party) (Civil Application E121 & & E120 of 2021 (Consolidated)) [2021] KECA 647 (KLR)", Case Analysis (2021). Civil Applications Nos. E121, E128 & E129 of 2021 (consolidated; E121 of 2021 as lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/647/eng@2021-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.