Evans Odhiambo Kidero & 9 others v Chief Magistrate of Milimani Law Courts & 4 others
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
#Key legal issues
#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
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.
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appeal would destroy the substratum of the appeal, rendering it nugatory, and that the prejudice to the applicants superseded the respondent's interest.
Arguability of the appeal
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.
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.
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.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.Temporary injunction restraining the 2nd respondent from placing caveats or restrictions on the applicants' properties pending the appeal (prayers 4 and 5)
- 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.