Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. E095 of 2021 (in Civil Appeal No. 242 of 2020)· [2022] KECA 42 (KLR)

Evans Odhiambo Kidero & 9 others v Chief Magistrate of Milimani Law Courts & 4 others

Court of Appeal
4 February 2022
2,148 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal blocked the EACC from investigating and valuing Dr. Evans Kidero's properties until his pending appeal is decided, ruling the actions would make the appeal pointless.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 9th July 2021 under Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, in which Dr. Evans Kidero and associated applicants sought temporary injunctions restraining the Ethics and Anti-Corruption Commission from investigating, searching, valuating or placing caveats on their properties pending the hearing of Civil Appeal No. 242 of 2020. A similar application had been dismissed on 9th October 2020 by Nambuye, Musinga and Gatembu, JJ.A., because the applicants failed the nugatory test; the applicants argued that the Commission's fresh investigations, inspection and valuation exercise scheduled between 12th and 29th July 2021 changed the position. The Commission opposed, contending the application was an abuse of process replicating the earlier one, and that its actions were pursuant to its constitutional and statutory mandate, with any rights engaged subject to limitation under Article 24. Applying the settled two-limb Rule 5(2)(b) test, with the Supreme Court's additional public-interest consideration, the Court held the appeal arguable, as previously found, and found the nugatory limb now satisfied because the fresh exercise targeted the very subject matter of the appeal and would destroy its substratum. The Court granted injunctions in terms of prayers 2 to 5, extending the interim orders of 20th September 2021 until determination of the appeal, with costs of the motion in the appeal. It deliberately refrained from commenting further on the merits to avoid embarrassing the bench seized of the main appeal.

Key legal issues

#
01

Whether a fresh set of facts (commencement of investigation, inspection and valuation) permits a second Rule 5(2)(b) application after dismissal of a similar earlier one

Holding

The Court found the nugatory limb now satisfied because the 2nd respondent had commenced the very process the appeal challenges; the prejudice to the applicants outweighed the respondent's ability to await the appeal's outcome.

Reasoning

The applicants had earlier failed the nugatory test when the 2nd respondent had not yet acted. Since then the respondent served notice of, and scheduled, fresh investigation, inspection and valuation of the properties during the pendency of Civil Appeal No. 242 of 2020. The Court held that carrying out acts which are themselves the subject of the pending appeal would destroy the substratum of the appeal, rendering it nugatory, and that the prejudice to the applicants superseded the respondent's interest.

p. 5
02

Arguability of the appeal

Holding

The Court confirmed that the appeal is arguable and not frivolous, as previously found by a differently constituted bench, but refrained from commenting further to avoid embarrassing the bench seized of the main appeal.

Reasoning

The Court accepted the prior finding of a differently constituted bench that the appeal was arguable. The appeal raises the legality of the search warrant of 19th September 2018, the 2nd respondent's jurisdiction to investigate assets acquired while the 1st applicant was a private citizen, and the use of the warrant against other applicants' properties (lifting the corporate veil). The Court deliberately limited its comments to avoid prejudging the main appeal.

p. 4

Legal principles established

#
  • An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal that is not frivolous, and second that the appeal would be rendered nugatory unless the stay or injunction is granted.
  • The principles under Rule 5(2)(b) apply equally to applications for injunction as to applications for stay of execution.
  • The Supreme Court in Gatirau Peter Munya added a third consideration under Rule 5(2)(b): whether it is in the public interest that the order of stay be granted.

Court orders

#
  1. 1.Temporary injunction restraining the 2nd respondent from investigating, searching and valuating the applicants' properties pending hearing and determination of Civil Appeal No. 242 of 2020 (prayers 2 and 3)
  2. 2.Temporary injunction restraining the 2nd respondent from placing caveats or restrictions on the applicants' properties pending the appeal (prayers 4 and 5)
  3. 3.Extension of the interim orders granted on 20th September 2021 until the hearing and determination of the appeal
Jurisdiction invoked
Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Evans Odhiambo Kidero & 9 others v Chief Magistrate of Milimani Law Courts & 4 others", Case Analysis (2022). Civil Application No. E095 of 2021 (in Civil Appeal No. 242 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/42/eng@2022-02-04

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