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Court of AppealAllowedCivil Application E253 of 2022· [2022] KECA 956 (KLR)

Independent Electoral & Boundaries Commission & another v Lichete & another

Court of Appeal
29 July 2022
3,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is the Court of Appeal's reasoned decision supporting its extempore ruling of 25th July 2022 granting the IEBC and its Chairman, Wafula Chebukati, a stay of execution of the High Court judgment of 18th July 2022 (Mrima, J) in Constitutional Petition No. E275 of 2022. The High Court had quashed the IEBC Dispute Resolution Committee's decision rejecting Reuben Kigame Lichete, a person living with disability, as a presidential candidate, declared a violation of his rights under Article 54 and the Persons with Disabilities Act, and ordered IEBC to accept and consider his nomination papers. The applicants sought stay pending an intended appeal under rule 5(2)(b). Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Keter, the court found the appeal arguable because the question whether the High Court decree amounted to amending the Article 137(1) constitutional qualifications by judicial edict deserved interrogation. On nugatory value, the court accepted uncontroverted evidence that presidential ballot printing had begun on 15th July 2022 and that adding the 1st respondent's candidature would delay printing beyond the 9th August 2022 election date. It rejected the argument that Chebukati's public undertaking to respect the judgment barred the motion, holding no inconsistency existed. Balancing the 1st respondent's Article 38 political rights against the public interest, the court held the public interest in holding the election on the constitutionally ordained date far outweighed his rights, even though damages were inadequate. The application was allowed with costs in the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 6
02

Nugatory value and public interest

Holding

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.

Reasoning

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.

p. 7
03

Approbate and reprobate

Holding

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.

Reasoning

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.

p. 6
04

Adequacy of damages as alternative remedy

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A, 3B
  • Court of Appeal Rules, 2010rules 5(2)(b), 44, 75
  • Court of Appeal Rules, 2022rules 34(7), 5(2)(b), 46
  • Elections (General) Regulations, 2012nomination requirements
  • Constitution of KenyaArticles 27, 38, 54, 137(1)
  • Persons with Disabilities ActNo. 14 of 2003

Cases cited (10)

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

    Summary of principles for stay of execution under rule 5(2)(b).

  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459

    Rule 5(2)(b) exercises original and discretionary jurisdiction, not an appeal from the trial judge's discretion.

  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365

    Court becomes seized of the matter only after notice of appeal is filed under rule 75.

  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001

    Whether an appeal will be rendered nugatory depends on each case's own facts and peculiar circumstances.

  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004

    A single bona fide arguable ground of appeal suffices.

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008

    An arguable appeal is one that ought to be argued fully; it need not necessarily succeed.

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227

    The term 'nugatory' means worthless, futile, invalid or trifling.

  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403

    Onus on impecunity claims shifts to respondent to rebut by evidence.

  • RWW v EKW
    [2019] eKLR

    Stay preserves the subject matter while weighing the respondent's right to the fruits of judgment.

  • Free Kenya Initiative & Others v Independent Electoral and Boundaries Commission & Others
    Constitutional Petition No. E160 of 2022 (unreported)

    Voided the requirement to supply copies of identity cards of supporters of an aspirant; cited in the High Court holding.

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

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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, "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.