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Court of AppealDismissedCivil Appeal E504 of 2022· [2022] KECA 970 (KLR)

Obuon v Dispute Resolution Committee & 2 others

Court of Appeal
26 August 2022
FOFred A. OchiengLKLuka KimaruMGMwaniki Gachoka
2,264 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt the Embakasi West election because the aspirant's own messages showed he missed nomination deadlines and he excluded affected candidates.

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 (Ochieng, Kimaru and Gachoka, JJA) giving reserved reasons for dismissing, on August 8, 2022, an application for stay of the Embakasi West Constituency parliamentary election scheduled for August 9, 2022, pending an appeal against the High Court's dismissal of the appellant's judicial review challenge. The appellant, an independent aspirant, had been denied clearance by the Returning Officer for allegedly failing to submit passport photographs in the correct format, a decision upheld by the Dispute Resolution Committee and then by the High Court (Antony Ndungu, J.). The Court of Appeal applied the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules: arguability and nugatory-ness. It held the intended appeal was not arguable because the appellant's own WhatsApp messages to the Returning Officer conceded he could not meet the statutory nomination deadlines owing to the unavailability of a proposer and seconder. It further found a fatal flaw in the failure to join the parliamentary candidates who would be affected by the orders sought, who would be condemned without being heard. Having failed the arguability threshold, the court declined to consider the nugatory limb. The application was dismissed with costs. The decision binds subordinate courts and tribunals on the Rule 5(2)(b) threshold, including that a concession may defeat arguability and that non-joinder of affected parties is fatal to stay applications affecting third parties.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable because the applicant's own WhatsApp messages conceded he could not meet the statutory nomination deadlines, and candidates for the seat who would be affected were not joined as parties.

Reasoning

The court analysed the DRC and High Court decisions and the applicant's WhatsApp communications. It found the applicant admitted inability to comply with timelines due to lack of a proposer and seconder. It also held that orders affecting non-party candidates would condemn them unheard, a fatal flaw. Analogous authority on concession-based non-arguability was applied.

p. 5
02

Nugatory-ness

Holding

Having failed the arguability threshold, the court declined to consider the nugatory principle.

Reasoning

The court stated that once the first twin principle fails, it is unnecessary to delve into the second. This reflects the settled approach that both limbs need not be satisfied where the first conclusively fails.

p. 5

Legal principles established

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  • An application for stay under Rule 5(2)(b) requires the applicant to satisfy the twin principles of arguability and nugatory-ness, considered against the facts of each case.
  • A single arguable ground suffices, but the ground must not be frivolous; a concession by the applicant may render an intended appeal non-arguable.
  • Rule 5(2)(b) jurisdiction is original and discretionary and does not constitute an appeal from the judge's discretion.

Court orders

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  1. 1.The application for stay pending appeal be and is hereby dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 101
  • Constitution of KenyaArticle 85
  • Constitution of KenyaArticles 10, 47, 48, 22, 50 (as cited in the High Court judgment reproduced)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 34(7)

Cases cited (6)

  • Edward Ilandi Itheka -vs- Independent Electrol and Boundaries Commission & another
    2017 eKLR Judicial Review 4 of 2017

    Where timelines for aspirants are published in advance, it is upon the aspirants to comply with them.

  • Harun Mwandali Mwaeni v IEBD & Another
    [2017] eKLR

    Timetables and cut-off dates imposed by the IEBC or by law facilitate the smooth running of the electoral process.

  • Dickson Sinkeet Mapi (suing as the personal representatives of Benjamin Mapi Ole Partimo) vs Naisegu Pargana Mutunkei
    Civil Appeal Application No. E041 of 2020

    Rule 5(2)(b) jurisdiction is discretionary and guided by the interest of justice.

  • Stanley Kangethe Kinjanjui -vs- Tony Keter & 5 other
    [2013] eKLR

    Rule 5(2)(b) jurisdiction is original and discretionary, not an appeal from the judge's discretion; single arguable ground suffices.

  • Trust Bank Limited and Another -vs- Investech Bank Limited and 3 Others
    [2000] eKLR

    Twin principles of arguability and nugatory-ness under Rule 5(2)(b), considered against the facts of each case.

  • Seventh Day Adventist Church E.A Ltd (Nairobi East S.D.A. Church) vs Strathmore Educational Trust Registered Trustees Kenya & 2 Others
    (2020) eKLR

    An intended appeal found non-arguable following a concession by the applicant.

On appeal from
High Court of Kenya at Nairobi
Judicial Review Application No. E106 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending appeal)

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, "Obuon v Dispute Resolution Committee & 2 others", Case Analysis (2022). Civil Appeal E504 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/970/eng@2022-08-26

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