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Court of AppealDismissedCivil Application E574 of 2022· [2022] KECA 1329 (KLR)

Langat v Independent Electoral and Boundaries Commission & 5 others

Court of Appeal
2 December 2022
AMA.K. MurgorSKS. ole KantaiJMJ. Mativo
1,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court ruling because a dismissed petition produces no order that can actually be stayed.

What this practically means

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Executive summary

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This is the Court of Appeal's reasoned decision for its ruling of 5th September 2022 dismissing Philip K. Langat's motion dated 22nd August 2022 seeking stay of execution of the High Court judgment (Ong'udi, J., 17th August 2022, Petition No. E317 of 2022). The High Court had declared that Section 43(5) of the Elections Act applies equally to a public officer seeking election as Speaker of a County Assembly, and the applicant also sought an injunction restraining the respondents from barring public officers from contesting elections for having failed to resign six months before the general election. The applicant argued his intended appeal was arguable, contending that election of a County Assembly Speaker is not an 'election' under the Elections Act and occurs on a date set by Standing Orders after the general election. The court applied the settled rule 5(2)(b) principles - arguability and nugatory-ness - but disposed of the motion on a narrower ground: the High Court had dismissed the petition and made no positive order capable of execution, and stay can only issue against such an order, following Co-operative Bank v BIFU and Mbarak Said Ali v Sultan Palace. The court declined to comment on whether the applicant was a public servant, leaving that for the full appeal. The motion was dismissed with costs in the appeal. The judgment binds subordinate courts on the requirement of a positive executable order as a precondition for stay.

Key legal issues

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01

Whether stay of execution could issue where the High Court dismissed the petition

Holding

No; a dismissal yields no positive order capable of execution, so stay cannot issue

Reasoning

The High Court had dismissed the petition and made no positive declaration capable of execution. Following this Court's precedents, stay lies only against a positive executable order. The applicant also did not claim to be a public servant, an issue left to the full appeal.

p. 3
02

Whether the applicant satisfied the arguability and nugatory-principles for stay

Holding

The court did not reach a definitive finding, resting dismissal on absence of an executable order

Reasoning

The court acknowledged the Kinyanjui v Ketter principles but determined the Motion on the narrower ground that no positive order existed to stay, declining to say more on arguability to avoid embarrassing the bench hearing the appeal.

p. 3

Legal principles established

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  • Stay of execution can only be granted where a positive order capable of execution has been made by the court below
  • An applicant for stay under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay

Court orders

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  1. 1.Motion dated 22nd August 2022 dismissed
  2. 2.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 177
  • Elections ActSection 43(5)
  • Elections ActSection 2
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

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

    Principles governing stay of execution pending appeal - arguability and nugatory-ness

  • Co-operative Bank of Kenya Limited v Banking Insurance and Finance Union Kenya
    [2015] eKLR

    Stay can only be granted where a positive order capable of execution has been made

  • Mbarak Said Ali & Anor v Sultan Palace Development Limited
    [2015] eKLR

    Stay can only be granted where a positive order capable of execution has been made

On appeal from
High Court of Kenya at Nairobi
Petition No. E317 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution 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, "Langat v Independent Electoral and Boundaries Commission & 5 others", Case Analysis (2022). Civil Application E574 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1329/eng@2022-12-02

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