Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedCivil Application 6 of 2014

George Mike Wanjohi v Steven Kariuki & 2 others

Supreme Court of Kenya
29 April 2014
Philip Kiptoo TunoiP. TunoiMohammed Khadhar IbrahimM. Ibrahim
4,278 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Supreme Court halts Mathare by-election pending appeal on how election results are declared.

What this practically means

#

The Supreme Court stopped the Mathare Constituency by-election while it hears an appeal about how election results are declared. The case questions whether the Court of Appeal correctly applied a previous Supreme Court ruling on when a Returning Officer can cancel a result form. The Court said stopping the election does not block the Constitution, which requires a by-election within 90 days of a vacancy. It only pauses the statutory process until the constitutional issues are resolved.

Executive summary

#
This was an interlocutory application by George Mike Wanjohi (the applicant) seeking a stay of execution of the Court of Appeal's judgment dated 18th March 2014, which had overturned the High Court's decision in an election petition concerning the Mathare Constituency National Assembly seat. The High Court had upheld the IEBC's cancellation of a Form 38 issued to Steven Kariuki (1st respondent) and the subsequent gazettement of the applicant as the duly elected member. The Court of Appeal, relying on the Supreme Court's decision in Hassan Ali Joho & another v Suleiman Said Shahbal, held that the Returning Officer became functus officio upon issuing Form 38 and ordered fresh elections. The applicant sought to stay that order pending appeal. The Supreme Court applied the test established in Gitarua Peter Munya v Dickson Mwenda & 2 others, requiring the applicant to show an arguable appeal, that the appeal would be rendered nugatory without stay, and that public interest favours stay. The Court found that the appeal raised cognizable constitutional issues regarding the proper interpretation of Articles 38(2), 86(c), and 88(5) of the Constitution and the application of the Joho decision, thus satisfying the arguability test. On the nugatory aspect, the Court noted that if stay was not granted and a by-election held, the appeal would be rendered nugatory if it succeeded. Addressing the public interest, the Court held that granting stay does not stop a constitutional process but only a statutory one, and that the Court cannot extend the 90-day period under Article 101(4) of the Constitution. The Court allowed the application, granting a stay of execution of the Court of Appeal judgment, a conservatory order against conducting the by-election, and restraining release of the election petition deposit, with costs in the cause.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application raises an arguable appeal within the meaning of Article 163(4)(a) of the Constitution
  2. 2.Whether the appeal will be rendered nugatory if stay is not granted
  3. 3.Whether the public interest tilts in favour of granting stay

Key legal issues

#
01

Whether the Court of Appeal misconstrued the Supreme Court's decision in Hassan Ali Joho & another v Suleiman Said Shahbal regarding the effect of issuance of Form 38.

Holding

The Court found that the question of whether the Court of Appeal misapplied the Joho decision raises cognizable constitutional issues that cannot be determined at the interlocutory stage.

Reasoning

The applicant argued that the Court of Appeal's per incuriam interpretation of the Joho decision regarding a Returning Officer's powers to declare results triggered constitutional questions under Articles 38(2), 86(c), and 88(5) of the Constitution. The Court noted that these issues relate to the proper ambit of the IEBC's constitutional powers regarding the conduct of elections and declaration of results, which require full hearing.

p. 7
02

Whether the Court can grant stay of execution of a Court of Appeal judgment ordering fresh elections when the seat has already been declared vacant and a by-election date set.

Holding

The Court held that granting stay does not stop a constitutional process but only halts a statutory process, and the Court cannot extend the 90-day period under Article 101(4) of the Constitution.

Reasoning

The Court distinguished the Munya case, noting that while the seat had been declared vacant and a by-election gazetted, the by-election process is statutory and falls under the supervisory mandate of the Supreme Court. The Court emphasized that it cannot extend the 90-day constitutional period but can stay the statutory process pending appeal.

p. 9
03

Whether the public interest test tilts in favour of granting stay pending appeal.

Holding

The Court found that the scales of public interest tilt towards granting stay, considering the need to safeguard constitutional principles and avoid a travesty of justice.

Reasoning

The Court applied the Munya case principles, noting that public interest requires proper husbandry of public resources and that allowing a by-election to proceed while an appeal raising weighty constitutional issues is pending could lead to a travesty of justice if the appeal succeeds after the election.

p. 10

Legal principles established

#
  • An appeal to the Supreme Court must raise pure constitutional issues, not just legal errors.
  • A stay of execution pending appeal can halt a statutory process but cannot stop a constitutional deadline.
  • The 90-day period for a by-election under Article 101(4) of the Constitution cannot be extended by court order.
  • Public interest may favour granting a stay if the appeal raises weighty constitutional questions and the election would be wasted if the appeal succeeds.
  • The Supreme Court can issue a conservatory order to prevent an election from being held while an appeal is pending.

Court orders

#
  1. 1.A stay of execution of the entire judgement dated 18th March 2014 and consequential orders of the Court of Appeal sitting at Nairobi in Civil Appeal No. 272 of 2013 is granted pending the hearing and determination of the Appeal herein.
  2. 2.A conservatory order is hereby granted against the 2nd Respondent from conducting the Member for the National Assembly elections for the Mathare Constituency, Nairobi County pending the hearing and determination of the Appeal before this Court.
  3. 3.The Deputy Registrar of the High Court is restrained from releasing the deposit of Ksh 500,000 in respect of the 1st Respondent’s Election Petition No. 2 of 2013 until the final determination of the Appeal herein.
  4. 4.Costs shall be in the cause.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 272 of 2013
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 is hereby granted against the 2nd Respondent from conducting the Member for the National Assembly elections for the Mathare Constituency, Nairobi County pending the hearing and determination of the Appeal before this Court.
p. 10 Final orders - conservatory order against by-election
an arguable appeal, properly conceived within the meaning of article 163(4)(a) of the Constitution must be one that elicits cognizable controversies that purely bear constitutional dimension and effect.
p. 7 Definition of arguable appeal under Article 163(4)(a)
by granting stay in this matter, the Court will in no way be stopping a constitutional process. The Constitution only decrees that the by-election be held within 90 days of the occurrence of a vacancy.
p. 9 Stay order does not stop constitutional process
Costs shall be in the cause.
p. 10 Costs order

Key timeline

#
2013
Election petition filed in High Court over Mathare Constituency National Assembly seat.
2014-03-18
Court of Appeal overturns High Court decision, orders fresh elections.
2014
George Mike Wanjohi files appeal to Supreme Court and applies for stay of the Court of Appeal judgment.
2014
Supreme Court grants stay of execution, halting the by-election pending appeal.

Practical implications

#
For lawyers

Arguable appeal requires constitutional dimension

When seeking a stay from the Supreme Court under Article 163(4)(a), you must demonstrate that the appeal raises 'cognizable controversies that purely bear constitutional dimension and effect.' Mere legal errors or misapplication of precedent won't suffice. Frame your arguments around specific constitutional provisions—like Articles 38, 86, or 88—to meet this threshold.

For businesses

Election uncertainty affects investment climate

Businesses in Mathare Constituency should note that the by-election delay creates regulatory uncertainty. However, the Supreme Court's ruling clarifies that constitutional election timelines (90 days) cannot be extended by court order. Plan for the by-election to occur within that window once the appeal is resolved. Monitor the appeal's progress to anticipate the election date.

For individuals

Your vote may be delayed by constitutional appeals

If you are a voter in Mathare Constituency, your by-election is on hold while the Supreme Court hears an appeal about how election results are declared. The Court cannot extend the 90-day constitutional deadline for the by-election, so the election must happen within that period after the appeal is decided. Stay informed through IEBC announcements.

Frequently asked questions

#
Can the Supreme Court stop a by-election in Kenya?+

Yes, the Supreme Court can issue a stay order to halt a by-election pending appeal. However, it cannot stop the constitutional process—only the statutory steps. The 90-day period for the by-election under Article 101(4) of the Constitution still runs, and the Court cannot extend it.

What is an arguable appeal in the Supreme Court of Kenya?+

An arguable appeal under Article 163(4)(a) of the Constitution must raise genuine constitutional issues, not just legal mistakes. It must involve questions about the interpretation or application of the Constitution itself, such as the proper scope of IEBC's powers or voters' rights.

How does the Supreme Court decide whether to grant a stay in election cases?+

The Court applies a three-part test: (1) the appeal must be arguable with constitutional issues; (2) the appeal would be rendered useless if the election proceeds; and (3) public interest favours granting the stay. The Court balances these factors, as seen in the Mathare by-election case.

What happens to the 90-day by-election deadline if the Supreme Court grants a stay in Kenya?+

The 90-day period under Article 101(4) of the Constitution continues to run, and the Court cannot extend it. The stay only pauses the statutory election process. Once the appeal is decided, the by-election must be held within the remaining days of the 90-day window from when the vacancy occurred.

Later judgments citing this (23)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "George Mike Wanjohi v Steven Kariuki & 2 others", Case Analysis (2014). Civil Application 6 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/24/eng@2014-04-29

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