Musili v Independent Electoral & Boundaries Commission & another
The bottom line
#Supreme Court halts Embakasi South by-election pending appeal on Muthama's election validity.
What this practically means
#The Supreme Court stopped the electoral commission from declaring the Embakasi South MP seat vacant or holding a by-election. This pause lets the court hear Julius Muthama's full appeal against the Court of Appeal decision that nullified his election. The court found the appeal raised serious issues and that holding a new election now would waste public money if Muthama ultimately wins.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution and conservatory orders meets the threshold set out in Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR
- 2.Whether the intended appeal is arguable and not frivolous
- 3.Whether the appeal would be rendered nugatory if the orders sought are not granted
- 4.Whether it is in the public interest to grant the orders sought
Key legal issues
#Whether the Supreme Court has jurisdiction to grant stay of execution and conservatory orders pending appeal under Article 163(4)(a) of the Constitution.
The Court implicitly affirmed its jurisdiction by considering and granting the application on its merits, rejecting the 2nd Respondent's argument that the Court lacks jurisdiction.
The 2nd Respondent argued that the Court does not have jurisdiction to hear and determine the application. However, the Court, after considering the pleadings and submissions, unanimously concluded that the application has merit and allowed the prayers. By doing so, the Court exercised its jurisdiction under Article 163(4)(a) and Rules 23 & 26 of the Supreme Court Rules, 2012, implicitly rejecting the jurisdictional challenge.
Whether the application for stay of execution and conservatory orders meets the threshold set in Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR.
The Court found that the application met the threshold, as it was arguable, would be rendered nugatory if not granted, and was in the public interest.
The Applicant argued that the intended appeal is arguable and not frivolous, that it would be rendered nugatory if the elections proceed, and that it is in the public interest to grant the stay to avoid waste of public resources. The 1st Respondent supported this position, while the 2nd Respondent opposed it. The Court, by allowing the application, implicitly accepted the Applicant's arguments and found that the threshold was satisfied.
Legal principles established
#- The Supreme Court has jurisdiction to grant stay orders pending appeal under Article 163(4)(a) of the Constitution.
- A stay requires an arguable appeal that is not frivolous, would be rendered nugatory if not granted, and serves public interest.
- Preventing a by-election while an appeal is pending avoids waste of public resources and meets the public interest test.
- The Court implicitly rejected a jurisdictional challenge by considering and granting the application on its merits.
- Costs of the stay application are reserved to be decided later (costs in the cause).
Court orders
#- 1.A conservatory order hereby issues restraining the 1st Respondent from certifying the position of the Member of National Assembly for Embakasi South Constituency as vacant, pending the hearing and determination of the appeal
- 2.A conservatory order hereby issues restraining the 1st Respondent from announcing or conducting Member of National Assembly elections in Embakasi South Constituency pending the hearing and determination of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A conservatory order hereby issues restraining the 1st Respondent from certifying the position of the Member of National Assembly for Embakasi South Constituency as vacant, pending the hearing and determination of the appeal;
A conservatory order hereby issues restraining the 1st Respondent from announcing or conducting Member of National Assembly elections in Embakasi South Constituency pending the hearing and determination of the Appeal;
The costs of this application shall be in the cause.
UPON considering the pleadings, arguments and submissions made by the respective parties, we have come to the unanimous conclusion that the Applicant's Notice of Motion Application dated 19th July, 2018 and lodged on 20th July, 2018 has merit, and allow the Applicant's prayers.
Key timeline
#Practical implications
#Stay application threshold clarified
When seeking a stay pending appeal in the Supreme Court, you must clearly show the appeal is arguable, not frivolous, and would be rendered nugatory without the order. Also argue public interest, such as avoiding wasted election costs. This case confirms the Court will implicitly reject jurisdictional objections by considering the merits.
Electoral uncertainty affects investment
Businesses in Embakasi South should note that pending election appeals can delay by-elections, creating political uncertainty. This may affect local contracts, tenders, or community relations. Monitor the Supreme Court appeal to anticipate when the seat will be filled and political stability returns.
Your right to challenge MP's election
If you think an MP's election was flawed, you can petition the Court of Appeal. If that court nullifies the election, the MP can ask the Supreme Court to pause the by-election while appealing. This means your vote may still count if the MP wins the final appeal.
Frequently asked questions
#What is a conservatory order in Kenya?+
A conservatory order is a court order that temporarily stops an action or decision to preserve the existing situation until a final decision is made. In this case, the Supreme Court used it to prevent IEBC from holding a by-election in Embakasi South while Muthama's appeal is heard.
How can an election result be challenged in Kenya?+
Any candidate or voter can challenge an MP's election at the Court of Appeal within 28 days of the result. If the Court nullifies the election, the loser can appeal to the Supreme Court. The Supreme Court may stop a by-election pending that appeal, as happened in Muthama's case.
Can the Supreme Court stop a by-election in Kenya?+
Yes, the Supreme Court can issue a conservatory order to stop a by-election if it is satisfied that the appeal against the Court of Appeal decision is arguable, would be pointless if the by-election goes ahead, and it is in the public interest to wait.
What happens to an MP's seat while an appeal is pending in Kenya?+
If the Supreme Court grants a stay, the seat is not declared vacant and no by-election is held. The MP continues to serve until the appeal is decided. If the MP wins the appeal, they keep the seat. If they lose, a by-election is then held.
Cite this brief
#Cite this brief
Caselaw, "Musili v Independent Electoral & Boundaries Commission & another", Case Analysis (2018). Civil Application 22 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/32/eng@2018-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.