Mulewa v Kenya Anti-Corruption Commission & another
The bottom line
#Kenya's Court of Appeal refused to halt the forfeiture of unexplained assets worth millions, ruling that money damages could adequately compensate the applicant if his appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because it raised the procedure under section 55(5) of the Anti-Corruption and Economic Crimes Act for unexplained-wealth suits.
The court applied the Kinyanjui v Ketter first limb: only one arguable ground is needed and arguability does not mean the appeal must succeed. The Applicant's challenge to the trial court's procedure - rendering final judgment without first establishing a prima facie case under section 55(5) - was held to merit consideration by the Court.
Nugatory-ness and reversibility
The appeal would not be rendered nugatory because substantial recoveries had already been made and damages would adequately compensate the Applicant.
The court noted recoveries of approximately Kshs 20 million out of approximately Kshs 74 million, that the State has means to restitute, and no suggestion the 1st Respondent could not make good a damages award. The second limb of the stay test therefore failed.
Interim orders of April 13, 2011
Prayers for release or vacation of the interim orders failed; they were overtaken by events and the High Court is the proper forum.
Most properties subject to the interim orders were also the subject of the impugned judgment and execution proceedings, so the orders were overtaken by events. Any application to vacate them lies in the High Court, not this Court on a Rule 5(2)(b) application.
Legal principles established
#- Under Rule 5(2)(b), an applicant for stay need only demonstrate one arguable ground of appeal, and an arguable appeal is not necessarily one that will succeed.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party; public interest is an additional element.
- Where no application to strike out an out-of-time Notice of Appeal is filed under Rule 84, the court may proceed to determine the merits of a Rule 5(2)(b) application.
Court orders
#- 1.The Notice of Motion dated March 14, 2019 is dismissed
- 2.No order as to costs
- On appeal from
- High Court at Mombasa
- Mombasa HCCC Misc Application No 93 of 2011 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulewa v Kenya Anti-Corruption Commission & another", Case Analysis (2022). Civil Application 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/672/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.