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Court of AppealAllowedCivil Appeal (Application) E312 & E181 of 2022 (Consolidated)· [2022] KECA 761 (KLR)

Mandera County Government & 3 others v Abdirahman & 6 others; Controller of Budget & 2 others (Interested Parties)

Court of Appeal
24 June 2022
3,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal paused orders that froze Mandera County's budget, ruling that public interest outweighed the freeze while the appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (D K Musinga, P, A K Murgor and F Sichale, JJA) on two consolidated notices of motion filed by the Mandera County Government, the County Governor, the County Executive Committee Member for Finance and the County Assembly of Mandera. The applicants sought a stay and/or suspension of conservatory orders issued by the High Court at Garissa (A. Aroni, J.) on 19th May 2022 in Constitutional Petition No. E002 of 2022, which restrained the County Government from dealing with monies in its bank accounts to implement the Mandera County Supplementary Budget for 2021/2022, and restrained the Controller of Budget from approving and disbursing funds for that budget. The applicants also sought a stay of the Petition proceedings pending appeal. Applying the rule 5(2)(b) threshold of arguability and nugatory value, the Court found the intended appeal arguable, principally because the trial judge was said to have failed to weigh the public interest element as directed by the Supreme Court in Gatirau Peter Munya. On the nugatory limb, the Court reasoned that if the conservatory orders subsisted, unutilised Supplementary Budget funds would revert to the Treasury at the end of the financial year, denying employees, suppliers and residents essential services, while the Petition itself would lose its substratum and become academic. Adopting the utilitarian approach in East African Cables, the Court held the public interest demanded a stay. Both applications were allowed; the conservatory orders and the Petition proceedings were stayed pending the appeal, with no orders as to costs given the public-interest nature of the matter.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable because the trial judge was said to have failed to consider the public interest element in granting all-encompassing conservatory orders.

Reasoning

The court held that if the trial judge failed to weigh the impact of the conservatory orders on the applicants as public service entities and on Mandera residents, the grievances raised an arguable matter fit for ventilation before the Court of Appeal. Only one arguable ground is sufficient at this stage.

p. 5
02

Nugatory value and public interest

Holding

Both parties would lose if the conservatory orders stood: unutilised Supplementary Budget funds would revert to the Treasury and the Petition would lose its substratum; the public interest favoured a stay.

Reasoning

The court adopted the utilitarian approach from East African Cables via the National Union of Water and Sewerage Employees case: where the consequences of an order would harm the greatest number of people, the alternative producing the greatest good should be chosen. Maintaining the orders would deny employees, suppliers and residents the benefit of the budget while rendering the Petition academic.

p. 6

Legal principles established

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  • An applicant under rule 5(2)(b) must show the appeal (or intended appeal) is arguable and that its success would not be rendered nugatory if stay is refused.
  • In interlocutory appellate applications, the public interest is a weighty consideration; where maintaining orders harms the greatest number, the court may stay them.

Court orders

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  1. 1.Stay of the conservatory orders granted in the ruling dated 19th May 2022 pending the hearing and determination of the appeal
  2. 2.Stay of the proceedings in Constitutional Petition No. E002 of 2022 pending the hearing and determination of the appeal
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 43
  • Appellate Jurisdiction Actsections 3, 3A and 3B
  • Constitution of KenyaArticles 10, 164, 175, 201, 207 and Schedule 4
  • Public Finance Management Act, 2012section 135
  • Public Finance (County Government) Regulations, 2015
  • County Governments Act

Cases cited (4)

  • Republic v Kenya Anticorruption Commission & 2 others
    [2009] eKLR

    Threshold for stay under rule 5(2)(b): arguability and nugatory value.

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Public interest element in granting conservatory orders.

  • National Union of Water and Sewerage Employees & 3 others v Nairobi City Water and Sewerage Company Limited & 3 others
    [2013] eKLR

    Adoption of the utilitarian public-interest approach.

  • East African Cables Limited v Public Procurement Complaints, Review and Appeals Board & another
    [2007] eKLR

    Utilitarian test: choose the alternative producing the greatest happiness for the greatest number.

On appeal from
High Court at Garissa
Constitutional Petition No. E002 of 2022
Jurisdiction invoked
Rules 5(2)(b) and 43 of the Court of Appeal Rules; sections 3, 3A and 3B of the Appellate Jurisdiction Act; Articles 164 and 175 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mandera County Government & 3 others v Abdirahman & 6 others; Controller of Budget & 2 others (Interested Parties)", Case Analysis (2022). Civil Appeal (Application) E312 & E181 of 2022 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/761/eng@2022-06-24

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