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Court of AppealDismissedCivil Application E094 of 2022· [2022] KECA 935 (KLR)

Mbago v Oluoch & 4 others

Court of Appeal
19 August 2022
SKS. ole KantaiMNMumbi NgugiKLK.I. Laibuta
1,539 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block a rival candidate's gazettement because the applicant proved no personal stake in the Rongo election outcome.

What this practically means

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Executive summary

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This is the Court of Appeal's reasoned decision explaining its 29th July 2022 dismissal of an application by Nicholas Ouma Mbago for stay of execution of a High Court of Kenya at Migori judgment (Wendoh, J., 15th July 2022, Constitutional Petition No. 4A of 2022). The High Court had allowed a petition by Nelson Onyango Oluoch, declaring that the IEBC Dispute Resolution Committee's decision revoking his clearance and nomination as the Jubilee Party candidate for Rongo constituency was unlawful, quashing that decision by mandamus, and directing IEBC to gazette his name as a candidate. The applicant, who had lodged an electoral complaint against the 1st respondent alleging improper party membership and clearance, filed a Notice of Appeal and sought stay pending the intended appeal, including an order stopping IEBC from publishing the gazette notice. Applying the settled Kinyanjui v Ketter principles, the panel (Kantai, Ngugi and Laibuta, JJA) found the draft 11-ground memorandum of appeal arguable - a single arguable point sufficing - but held the applicant failed the nugatory prong: he had not established that he was a registered voter or candidate in Rongo constituency, nor which right of his was likely to be breached. The Motion was accordingly dismissed. The judgment binds subordinate courts on the two-limb stay test and on the requirement of demonstrated rights or standing for the nugatory prong. No costs order is recorded.

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised arguable grounds, including whether the Judge erred in faulting the DRC Chairman and in finding the 1st respondent was denied a hearing; a single arguable point suffices

Reasoning

The court evaluated the 11 draft grounds and found at least some arguable, noting the settled principle that an applicant need not show a multiplicity of arguable points; one good ground satisfies the first limb of the Kinyanjui v Ketter test.

02

Nugatory-prong of the stay application

Holding

The applicant failed to establish that the appeal would be rendered nugatory absent stay because he showed no voter or candidate status in Rongo constituency and no right likely to be breached

Reasoning

The court held that the applicant, who was neither a registered voter nor a candidate for the Rongo parliamentary seat, did not demonstrate any personal right at stake; without such a right, the second limb of the stay test was not satisfied and the Motion fell to be dismissed.

p. 3

Legal principles established

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  • An applicant for stay must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay; a single arguable point suffices
  • An applicant who has not established standing as a voter or candidate, or a right likely to be breached, fails the nugatory-prong of a stay application

Court orders

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  1. 1.Dismissal of the Motion for stay of execution, as decided on 29th July 2022, with reasons delivered on 19th August 2022

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 88
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 50
  • Court of Appeal (Election Petition) Rules 2017Rule 18
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 43
  • Court of Appeal Rules, 2022Rule 49
  • Court of Appeal Rules, 2022Rule 51
  • Elections Act 2011Section 28
  • Fair Administrative Actions Act

Cases cited (2)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR

    Principles governing stay of execution pending appeal - arguability and nugatory prongs

  • Damji Pragji Mandaria v Sara Lee Household and Body Care (K) Limited
    Civil Application No. NAI 345 of 2004 (ur)

    A single arguable point on appeal will suffice

On appeal from
High Court of Kenya at Migori
Constitutional Petition No. 4A of 2022
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Rule 18 of the Court of Appeal (Election Petition) Rules 2017; Rules 5(2)(b), 43, 49 and 51 of the Court of Appeal Rules, 2022

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, "Mbago v Oluoch & 4 others", Case Analysis (2022). Civil Application E094 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/935/eng@2022-08-19

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