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Court of AppealAllowedCivil Application NAI E241 of 2022· [2022] KECA 975 (KLR)

Independent Electoral and Boundaries Commission v Free Kenya Initiative & 22 others

Court of Appeal
29 July 2022
HOHANNAH OKWENGUASMS ASIKE-MAKHANDIAHOHA OMONDI
3,212 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 ruling that had struck down election regulations, protecting the August 2022 general election from disruption.

What this practically means

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Executive summary

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The IEBC applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of a High Court judgment (Mrima, J, 5 July 2022) delivered in four consolidated constitutional petitions brought by 18 independent candidates. The High Court had declared Regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) unconstitutional for contravening various constitutional articles and the Data Protection Act, quashed them by certiorari, and ordered each party to bear its own costs as public interest litigation. The impugned Regulations had required, among other things, hard-copy identity cards of supporters of independent candidates. Before the Court of Appeal, the IEBC argued the intended appeal was arguable, that the High Court orders had created confusion over vetting, and that with ballot papers already being printed abroad and the 9 August 2022 general election imminent, failure to stay the orders would waste public resources and jeopardise the elections. The respondents countered that a successful litigant should not be denied the fruits of judgment and that the IEBC's difficulties were self-inflicted. Applying the twin Rule 5(2)(b) principles plus the third public-interest condition from Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court held the appeal was arguable since the grounds required constitutional interpretation, and that the nugatory and public-interest factors - waste of ballot papers, uncertainty for candidates and voters, and safeguarding public resources - outweighed the prejudice to the respondents, who had approached the court at the eleventh hour. The Court allowed the motion and stayed the High Court judgment pending the appeal, with costs in the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable because the listed grounds raise issues requiring interpretation of constitutional provisions.

Reasoning

The applicant's grounds challenged findings on Articles 27, 28, 31, 83, 99(1)(c), 137(1)(d) and 193(1)(c) and the Data Protection Act exemptions. The Court held that grounds requiring constitutional interpretation suffice; a single bona fide arguable ground is enough and the appeal need not necessarily succeed.

p. 6
02

Nugatory aspect and public interest

Holding

If the High Court orders were not stayed, ballot papers already printed would be wasted, candidates' fates would be uncertain, and the general elections would be jeopardised; the public interest favoured a stay.

Reasoning

The Court weighed the prejudice to the successful petitioners against the waste of public resources in printing ballot papers, the fate of unvetted independent candidates, and the interest of the voting public, applying the third Gatirau Munya condition and the good-governance principle of safeguarding public resources.

p. 6
03

Delay by respondents in approaching the court

Holding

The respondents ought to have challenged the impugned Regulations in good time rather than at the eleventh hour after failing vetting.

Reasoning

The Regulations existed since 2012-2017, were suspended for the 2017 elections, and their application in 2022 was obvious; the respondents' eleventh-hour petition weighed against them in the balancing exercise.

p. 6

Legal principles established

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  • To succeed under Rule 5(2)(b) an applicant must show an arguable appeal and that, if successful, the appeal will be rendered nugatory; in constitutional litigation a third public-interest condition may be added.
  • In constitutional matters a third condition for stay under Rule 5(2)(b) is that it is in the public interest that the order of stay be granted.

Court orders

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  1. 1.Orders of stay of execution of the judgment of the High Court delivered on 5th July 2022 pending the hearing and determination of the applicant's appeal
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 88
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 31
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 81(2)
  • Constitution of Kenya, 2010Article 83(3)
  • Constitution of Kenya, 2010Article 94(5)
  • Constitution of Kenya, 2010Article 99
  • Constitution of Kenya, 2010Article 103
  • Constitution of Kenya, 2010Article 137(1)(d)
  • Constitution of Kenya, 2010Article 193(1)(c)
  • Elections (General) Regulations, 2012 (as amended in 2017)Regulations 18(2)(c), 24(2)(c), 32(2)(c) and 36(2)(c)
  • Data Protection Actsection 30
  • Data Protection Actsection 51
  • Political Parties Actamendment sought
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63

    A successful party is entitled to the fruits of his judgment; the court should not protect a stay applicant at the expense of a successful litigant.

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

    Delineation of the twin principles for grant of stay under Rule 5(2)(b): arguability and nugatory aspect.

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Introduction of a third public-interest condition for stay in constitutional matters; election petitions are disputes in personam and in rem.

  • Stanley Kang'ethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR

    Elaboration of the arguability test: a single bona fide arguable ground suffices; an arguable appeal is not one which must necessarily succeed.

On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. E160 of 2022 (Consolidated with Petition No. E219 of 2022, E255 of 2022 and Petition No. 12 of 2022)
Jurisdiction invoked
Rule 5(2)(b) of the 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, "Independent Electoral and Boundaries Commission v Free Kenya Initiative & 22 others", Case Analysis (2022). Civil Application NAI E241 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/975/eng@2022-07-29

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