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Court of AppealAllowedCivil Application E264 of 2022· [2022] KECA 806 (KLR)

Gedi v Njau & 2 others; United States of America Embassy in Kenya & 3 others (Interested Parties)

Court of Appeal
29 July 2022
MNMumbi NgugiLKLuka KimaruJMJ. M. Mativo
378 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a High Court election-related judgment, ruling the appeal was arguable and would be pointless without a stay.

What this practically means

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Executive summary

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This is a brief interlocutory ruling of the Court of Appeal at Nairobi (Ngugi, Kimaru and Mativo, JJA) on an application under Rule 5(2)(b) of the Court's Rules by Mohammed Suby Gedi seeking stay of execution of the judgment of the High Court at Garissa (Ali-Aroni J) dated 21st July, 2022 in Constitutional Petition No. 10B of 2022, pending the hearing and determination of an intended appeal. The respondents were Nicholas Waititu Njau, the Independent Electoral and Boundaries Commission and the Attorney General, with the United States Embassy in Kenya, the Principal Secretary State Department of Immigration, the Director of Criminal Investigation and the Ethics and Anti-Corruption Commission as interested parties. Counsel for the Attorney General indicated a neutral position. Having considered the rival submissions, the Court held that the applicant had satisfied both limbs of the Rule 5(2)(b) test: that he has an arguable appeal and that the appeal would be rendered nugatory if the orders sought were not granted. It accordingly allowed the application dated 27th July, 2022 in terms of prayer 3, staying execution of the High Court judgment, with costs of the application to be in the appeal. The Court stated that its full reasons would be delivered on 5th August, 2022. The decision below was not disturbed on the merits at this stage; the ruling preserves the status quo pending appeal.

Key legal issues

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01

Whether the twin criteria for stay under Rule 5(2)(b) were met

Holding

The Court found both limbs satisfied and granted stay in terms of prayer 3 of the application dated 27th July, 2022.

Reasoning

The Court considered the application under Rule 5(2)(b) and rival submissions of counsel for the applicant, the 1st and 2nd respondents, with the Attorney General taking a neutral position. It concluded that the applicant had demonstrated an arguable appeal and that the appeal would be rendered nugatory absent the orders sought, warranting stay of the High Court judgment pending the intended appeal.

p. 2

Legal principles established

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  • An applicant for stay of execution under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.

Court orders

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  1. 1.Application dated 27th July, 2022 allowed in terms of prayer 3 thereof (stay of execution of the High Court judgment dated 21st July, 2022 pending the intended appeal)
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Rules of this Court (Court of Appeal Rules)Rule 5(2)(b)
On appeal from
High Court of Kenya at Garissa
Constitutional Petition No. 10B of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Rules of this Court (Court of Appeal Rules)

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, "Gedi v Njau & 2 others; United States of America Embassy in Kenya & 3 others (Interested Parties)", Case Analysis (2022). Civil Application E264 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/806/eng@2022-07-29

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