Independent Electoral & Boundaries Commission & another v Lichete & another
The bottom line
#Kenya's Court of Appeal paused a High Court order that would have forced IEBC to add a presidential candidate, protecting the 9 August 2022 election date.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal is arguable because the question whether the High Court decree effectively amended the constitutional qualifications for presidential candidacy by judicial edict is not frivolous.
The applicants argued that the High Court ordered IEBC to accept the 1st respondent's nomination although he had not met the Article 137(1) threshold of 48,000 supporters as at 25th May 2022. The court held that although rival arguments would be received at the hearing of the appeal, the debate raised was deserving of further interrogation and therefore a single bona fide arguable ground was established.
Nugatory value and public interest
Granting stay would end the 1st respondent's candidature, but the public interest in holding the election on 9th August 2022 outweighs his political rights, so the appeal would be rendered nugatory without stay.
The court accepted uncontroverted evidence that presidential ballot printing had begun on 15th July 2022 and that adding the 1st respondent's candidature would require redesign and delay, making timely delivery impossible. Postponing the election was unfathomable and a recipe for constitutional crisis, so the balance tipped decisively in favour of stay.
Approbate and reprobate
The 2nd applicant's public statement that IEBC would respect the High Court judgment does not contradict the application for stay and does not bar the motion.
The court discerned no inconsistency between the Chairman's statement that the Commission would process the nomination if presented and the position that doing so would delay ballot printing. A party's willingness to comply does not bar it from exercising its undoubted right of appeal and seeking stay.
Adequacy of damages as alternative remedy
Damages were not an adequate remedy for the 1st respondent, but the overwhelming public interest dictated that the successful party may have to make do with a less than satisfactory relief if the appeal fails.
Counsel for the 1st respondent emphasised that his client desired to be a presidential candidate and that compensation by damages, a prayer refused by the High Court, was inadequate. The court acknowledged this but held the overwhelming public interest dictated the result, accepting the successful party might have to accept a less satisfactory relief.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must satisfy both twin principles: that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
- In an interlocutory stay application the court must not make definitive findings of fact or law that may embarrass the hearing of the main appeal.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or whether damages will reasonably compensate the aggrieved party.
- Public interest in holding a general election on the constitutionally ordained date may outweigh a litigant's political rights when weighing a stay application.
Court orders
#- 1.Stay of execution of the judgment of 18th July 2022 in High Court Constitution Petition No. E275 of 2022 and the resulting decree, pending the hearing and determination of the intended appeal, is granted
- 2.Costs shall be in the appeal
- On appeal from
- High Court
- Constitution Petition No. E275 of 2022
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; rules 5(2)(b) and 46 of the Court of Appeal Rules (cited as rule 44 of the 2010 Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Independent Electoral & Boundaries Commission & another v Lichete & another", Case Analysis (2022). Civil Application E253 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/956/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.