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Court of AppealPartially AllowedCivil Application E016 of 2022· [2022] KECA 1311 (KLR)

Attorney General & 3 others v PAK & another

Court of Appeal
2 December 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,293 words in judgment
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The bottom line

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Kenya's Court of Appeal paused most of a landmark abortion ruling pending appeal, but the quashing of criminal charges against the respondents stands.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Kairu, Nyamweya and Lesiit, JJA) on a Notice of Motion dated July 27, 2022 brought under Rule 5(2)(b) of the Court of Appeal Rules by the Attorney General, the Director of Public Prosecutions, the Inspector General of Police and the Senior Principal Magistrate Kilifi. They sought a stay of the judgment and decree of the High Court (Nyakundi J) delivered on March 24, 2022 in Malindi High Court Constitutional Petition No. E009 of 2020, pending an intended appeal. The High Court had declared sections 158, 159 and 160 of the Penal Code constitutional but identified a lacuna on termination of pregnancies, directed Parliament to enact an abortion law framework under Article 26(4), quashed by certiorari the criminal charges against the Respondents, found the forced medical examination of the first Respondent unconstitutional, and protected doctor-patient communication. Applying the settled two-limb test in Stanley Kangethe Kinyanjui v Tony Ketter, as augmented by the public-interest element in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court found the intended appeal arguable and held that the orders extensively affecting abortion law and policy and the duties of the police and DPP should be put on hold in the public interest. The application was partially allowed: all the High Court orders were stayed except order (d), the certiorari order quashing the criminal charges, which was preserved because the only demonstrated prejudice to the Respondents was continued prosecution of already-withdrawn cases. There was no order as to costs.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable, as the core issues of whether abortion is illegal or a fundamental right were not disputed.

Reasoning

The court found the issues of whether abortion is illegal or a fundamental right were at the core of the intended appeal and undisputed. It stressed that arguability requires only that a point deserve consideration, not that it succeed. The Respondents did not contest arguability.

p. 4
02

Nugatory test and public interest

Holding

The threshold was met for most of the High Court orders because they extensively affect abortion law and policy and the duties of police and the DPP, and actions under the judgment may be irreversibly irreversible.

Reasoning

Applying Kinyanjui v Ketter and the Munya public-interest element, the court held the orders sought to be stayed extensively affect abortion law and policy and police/DPP duties; execution may be irreversible. Balancing prejudice, only the Respondents' continued prosecution was demonstrated prejudice, justifying preserving only the certiorari order.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two requirements: an arguable appeal, and that the appeal would be rendered nugatory unless stay is granted.
  • An arguable point need not be one that must succeed, but merely one deserving of consideration by the Court.
  • Public interest is an element to be considered in stay applications, per the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji.

Court orders

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  1. 1.The orders in the judgment delivered by the High Court on March 24, 2022 in Malindi High Court Constitutional Petition No E009 of 2020 are stayed pending the hearing and determination of the appeal, save for order (d) of the said judgment (the certiorari order quashing the criminal charges)
  2. 2.There shall be no order as regards the costs of the application
  3. 3.Orders accordingly

Authorities

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Legislation

  • Penal Codesection 158
  • Penal Codesection 159
  • Penal Codesection 160
  • Penal Codesection 154
  • Constitution of KenyaArticle 26(4)
  • Constitution of KenyaArticle 157(6) and (7)
  • Constitution of KenyaArticles 1, 2, 4, 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 43, 46, 48, 49, 50, 73, 75, 157(11), 159, 165(3,6 & 7), 232, 258, 259
  • Constitution of Kenyasection 7 of the Sixth Schedule
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

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

    Restatement and amplification of the principles for granting stay under Rule 5(2)(b): arguable appeal and nugatory appeal.

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

    That the court exercises original jurisdiction under Rule 5(2)(b).

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

    Addition of public interest as an element to be considered in stay applications.

On appeal from
High Court of Kenya at Malindi
Malindi High Court Constitutional Petition No. E009 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant stay pending intended 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, "Attorney General & 3 others v PAK & another", Case Analysis (2022). Civil Application E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1311/eng@2022-12-02

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