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Court of AppealDismissedCivil Application E373 of 2021· [2022] KECA 386 (KLR)

Mucheru & 2 others v Katiba Institute & 2 others

Court of Appeal
4 March 2022
4,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a quashing order against the Huduma card rollout takes effect immediately and cannot be paused pending appeal.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Murgor, Mbogholi-Msagha and Laibuta, JJA) dismissed an application under Rule 5(2)(b) for stay of execution of a High Court judgment (Jairus Ngaah, J., 14th October 2021) in Judicial Review Application No. E1138 of 2020. The High Court had quashed, by certiorari, the decision of 18th November 2020 to roll out Huduma cards for being ultra vires section 31 of the Data Protection Act, 2019, and had mandated, by mandamus, a data protection impact assessment before processing data and rolling out the cards. The applicants - Joe Mucheru, Fred Matiangi and the Attorney General - argued the intended appeal would be rendered nugatory and that the public would suffer irreversible substantial loss. The Court found the appeal arguable but held that the order of certiorari is incapable of being stayed, since staying it would undo what the superior court had done; the Court can only reverse certiorari on the hearing of the appeal. As to mandamus, the application had been overtaken by events: the applicants had already submitted the Data Protection Impact Assessment for NIIMS on 12th January 2022, rendering any stay worthless and moot. The Motion was dismissed, and, the matter being one of public interest, each party was left to bear its own costs - no orders as to costs were made. The ruling affirms the settled principle that certiorari orders take effect immediately and cannot be stayed pending appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found the appeal arguable and by no means frivolous, but this alone did not entitle the applicants to stay.

Reasoning

Reading the grounds of the Motion, the draft Memorandum of Appeal, the supporting affidavits and the submissions, the Court was persuaded the applicants had an arguable appeal. It stressed that whether the appeal succeeds is a matter for the hearing of the appeal, and that it is immaterial whether the appeal rests on one or more grounds.

p. 8
02

Whether an order of certiorari can be stayed pending appeal

Holding

No. Certiorari is not capable of execution or stay; staying it would reverse the superior court's decision, which only the intended appeal can do.

Reasoning

Relying on Karia Mbae and Republic v Municipal Council of Mombasa Ex Parte Adopt-A-Light, the Court held that certiorari quashing a decision takes effect immediately and is final and conclusive. The Court has no jurisdiction at the stay stage to undo what the superior court has done; it can only reverse the order of certiorari upon hearing the appeal.

p. 8
03

Whether the order of mandamus should be stayed

Holding

No. The application had become moot because the applicants had already complied by submitting the Data Protection Impact Assessment, rendering any stay worthless.

Reasoning

The Attorney General's letter of 12th January 2022 confirmed compliance with the mandamus by submitting the Data Protection Impact Assessment for NIIMS. The applicants did not deny those steps. A stay could not arrest the doing or undo of what had already been done, and the Motion came too late in the day.

p. 9
04

Whether the replying affidavit should be expunged for want of prior leave

Holding

The request to expunge the replying affidavit was unmerited in light of Article 159(2)(d) of the Constitution.

Reasoning

The applicants sought expungement of paragraphs of the replying affidavit filed late without leave, but did not deny the compliance steps it disclosed. The Court held that justice must be administered without undue regard to procedural technicalities under Article 159(2)(d), and declined to strike out the affidavit.

p. 9

Legal principles established

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  • An order of certiorari, once made, cannot be stayed; the Court of Appeal has no jurisdiction under Rule 5(2)(b) to stay a nullification by certiorari, and can only reverse it on the hearing of the appeal.
  • To succeed on an application under Rule 5(2)(b), an applicant must show the appeal is arguable and that, if successful, it would be rendered nugatory absent stay.
  • A single arguable point suffices on an application for stay; the applicant need not show a multiplicity of arguable grounds or that the point will succeed.

Court orders

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  1. 1.the applicant's Notice of Motion dated 27th October 2021 is hereby dismissed
  2. 2.this being a matter of public interest, there shall be no orders as to costs

Authorities

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Legislation

  • Registration of Persons Act (Cap. 107)section 9A; sections 5(1)(g) and 5(1)(ha)
  • Statute Law (Miscellaneous Amendments) Act, 2018entire Act
  • Data Protection Act, 2019section 31
  • Court of Appeal RulesRule 5(2)(b)
  • Constitution of Kenya, 2010Articles 10(2)(a), 24(1), 27, 31, 118(1)(b), 159(2)(d), 259
  • Births and Deaths Registration Act
  • Basic Education Act
  • Refugees Act
  • Traffic Act
  • Kenya Citizenship and Immigration Act

Cases cited (6)

  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR

    Restatement of the twin principles for stay under Rule 5(2)(b): arguability and nugatory-ness.

  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others
    [2014] eKLR

    One arguable point suffices; the applicant need not show the point will succeed.

  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 EA p.227 at p.232

    Definition of 'nugatory': not only worthless, futile or invalid, but also trifling; context-specific.

  • Karia Mbae v The Land Adjudication Officer, Chuka
    High Court Misc. Application No. 257 of 1987 (Unreported)

    No jurisdiction to stay, recall, review, set aside or quash an order of certiorari once made.

  • Republic v Municipal Council of Mombasa & 2 Others, Ex Parte Adopt-A-Light Ltd
    Civil Application No. Nai. 15 of 2007 (unreported)

    Certiorari is not capable of execution or stay; it takes effect immediately and can only be reversed on appeal.

  • The Speaker of the National Assembly and Another v The Senate of the Republic of Kenya
    Nairobi Civil Appeal No. E084 of 2021

    Mentioned as pending appeal concerning nullification of the Statute Law (Miscellaneous Amendments) Act, 2018; stay of invalidity granted.

On appeal from
High Court of Kenya at Nairobi
Judicial Review Application No. E1138 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending intended appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mucheru & 2 others v Katiba Institute & 2 others", Case Analysis (2022). Civil Application E373 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/386/eng@2022-03-04

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