Garama v Karisa & 3 others
The bottom line
#Supreme Court halts Magarini by-election pending appeal on election nullification test.
What this practically means
#The Supreme Court has temporarily stopped the Magarini Constituency by-election while it hears an appeal by MP Harrison Garama Kombe. The Court of Appeal had nullified his election, but the Supreme Court found his appeal raises serious constitutional questions about how courts decide to cancel elections. Until the appeal is heard, the IEBC cannot declare the seat vacant or hold a fresh election. The court prioritized the appeal for quick hearing.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is arguable and not frivolous
- 2.Whether the appeal would be rendered nugatory without the grant of stay
- 3.Whether it is in the public interest to grant the order of stay
Key legal issues
#Whether the appeal is arguable and not frivolous
The appeal is arguable and not frivolous because it involves the proper interpretation of articles 81 and 86 of the Constitution and section 83 of the Elections Act on the two-prong test for nullification of elections.
The court noted that the gist of the appeal involves a determination of the proper interpretation of articles 81 and 86 of the Constitution and section 83 of the Elections Act on the two-prong test before nullification of elections, and also addresses the principles of the burden of proof to be applied in election petitions. In light of the facts and arguments, the court found the appeal arguable and not frivolous.
Whether the appeal would be rendered nugatory without the grant of stay
The appeal would be rendered nugatory if stay is not granted because the applicant would be forced to seek re-election while pursuing the appeal, potentially leading to conflicting outcomes.
The court observed that execution of the Court of Appeal decision would constrain the applicant to seek re-election while simultaneously pursuing his appeal, with the possible consequence that the outcome of the appeal and the fresh elections would be at variance, rendering the appeal an exercise in futility and a waste of judicial resources.
Whether it is in the public interest to grant the order of stay
It is in the public interest to grant the stay because the competing claims favour public interest and good governance, and the need to consciously deploy limited public resources.
The court balanced the competing claims and found that public interest and good governance, together with the need to deploy limited public resources consciously, favoured granting the stay. The court's rational sense of balance and proportion lay in favour of an expedited hearing of the appeal rather than fresh elections while the appeal is pending.
Legal principles established
#- To get a stay of execution, an appellant must show the appeal is arguable, not frivolous.
- A stay must be granted if the appeal would be rendered nugatory without it.
- Public interest and conservation of public resources favour staying a by-election pending appeal.
- Courts must balance the need for representation against avoiding conflicting election outcomes.
- An appeal is arguable if it raises proper interpretation of constitutional election provisions.
Court orders
#- 1.The notice of motion dated August 1, 2023 and filed on August 8, 2023 by the applicant be and is hereby allowed.
- 2.Execution of the judgment and order of the judgment of the Court of Appeal delivered on 28th July, be held in abeyance pending the final determination of the appeal.
- 3.A conservatory order shall issue forth against the Independent Electoral and Boundaries Commission from declaring the position of Member of the National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
- 4.A conservatory order issue restraining the Independent and Electoral Boundaries Commission from setting in motion the process of election for the position of Member of the National Assembly for Magarini Constituency pending the hearing and determination of the applicant’s appeal.
- 5.The Registrar shall make due arrangements for the hearing and disposal of the appeal, on the basis of priority and of the greatest frequency.
- 6.The costs of this application to abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Mombasa
- Election Appeal No E001 of 2023
- 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.
Execution of the judgment and order of the judgment of the Court of Appeal delivered on 28th July, be held in abeyance pending the final determination of the appeal.
A conservatory order shall issue forth against the Independent Electoral and Boundaries Commission from declaring the position of Member of the National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
A conservatory order issue restraining the Independent and Electoral Boundaries Commission from setting in motion the process of election for the position of Member of the National Assembly for Magarini Constituency pending the hearing and determination of the applicant’s appeal.
The costs of this application to abide the outcome of the appeal.
Key timeline
#Practical implications
#Strengthened stay criteria for election appeals
When seeking a stay in election cases, you must now clearly demonstrate all three Gatirau Peter Munya factors: arguable appeal, nugatory risk, and public interest. The court emphasized that forcing an appellant to seek re-election while appealing creates conflicting outcomes, making the appeal nugatory. Use this ruling to argue for stays where fresh elections would waste resources.
Election uncertainty affects local investment
Businesses in Magarini Constituency should note that the by-election is on hold, delaying potential changes in representation. This ruling shows that election disputes can take months to resolve, creating uncertainty for local contracts and government projects. Monitor the Supreme Court appeal timeline to anticipate when the seat may be filled.
Your vote may be delayed by court appeals
If you are a voter in Magarini, the by-election is postponed until the Supreme Court decides the appeal. This means your constituency will not have an MP for now. The court prioritized the appeal to avoid a wasted election if Kombe wins. You can follow the case at the Supreme Court registry for updates on the hearing date.
Frequently asked questions
#Why did the Supreme Court stop the Magarini by-election in Kenya?+
The Supreme Court stopped the by-election because MP Harrison Garama Kombe appealed the Court of Appeal decision nullifying his election. The court found his appeal raises important constitutional questions about how elections are cancelled, and holding a by-election now would waste money if he wins the appeal.
What is a conservatory order in Kenyan election law?+
A conservatory order is a court order that temporarily stops an action, like a by-election, until a case is decided. In this ruling, the Supreme Court issued conservatory orders to prevent IEBC from declaring the Magarini seat vacant or conducting a fresh election while Kombe's appeal is pending.
How long will the Magarini by-election be delayed in Kenya?+
The by-election is delayed until the Supreme Court hears and decides Kombe's appeal. The court ordered the Registrar to prioritize the case for quick hearing, but no specific timeline was given. Typically, such appeals take several months to resolve.
What is the two-prong test for nullifying elections in Kenya?+
The two-prong test comes from Articles 81 and 86 of the Constitution and Section 83 of the Elections Act. Courts must find both that an election was not conducted in accordance with the law and that the irregularities affected the result. This case argues the Court of Appeal applied the test incorrectly.
Cite this brief
#Cite this brief
Caselaw, "Garama v Karisa & 3 others", Case Analysis (2023). Application E028 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/83/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.