Mucheru & 2 others v Katiba Institute & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the appeal arguable and by no means frivolous, but this alone did not entitle the applicants to stay.
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.
Whether an order of certiorari can be stayed pending appeal
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.
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.
Whether the order of mandamus should be stayed
No. The application had become moot because the applicants had already complied by submitting the Data Protection Impact Assessment, rendering any stay worthless.
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.
Whether the replying affidavit should be expunged for want of prior leave
The request to expunge the replying affidavit was unmerited in light of Article 159(2)(d) of the Constitution.
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.
Legal principles established
#- 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
#- 1.the applicant's Notice of Motion dated 27th October 2021 is hereby dismissed
- 2.this being a matter of public interest, there shall be no orders as to costs
- 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
#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.
- Ndereba v Mbijiwe & 5 others[2022] KEELC 15048 (KLR)23 Nov 2022applied
Cite this brief
#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.