COUNCILLOR JOSEPH CHACHA MWITA & 3 others v UHURU KENYATTA & 6 others [2007] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal froze the arbitration over KANU's ODM-K deal but refused to stop party leaders from doing their jobs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' intended appeal against the High Court order of 19 April 2007 staying their suit and referring the dispute to arbitration is arguable, and whether, absent a stay or injunction, its success would be rendered nugatory (the rule 5(2)(b) twin principles).
- 2.Whether a stay of execution of the order made on 19th April 2007 in Nakuru High Court Civil Case No. 54 of 2007 and a stay of the arbitration proceedings ordered by that court should be granted pending the hearing and determination of the appeal.
- 3.Whether a temporary injunction should issue restraining the respondents from taking action on behalf of KANU, merging KANU with ODM-K, the Liberal Democratic Party or any other party, acting ultra vires the KANU Constitution, or holding themselves out as members and officials of both KANU and ODM-K.
Key legal issues
#The principles governing applications for stay of execution and injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules.
Two cumulative conditions apply: the intended appeal must be arguable or not frivolous, and, absent a stay of execution, an injunction, or both, the success of the appeal or intended appeal would be rendered nugatory. These principles, drawn from Githunguri v Jimba Credit Corporation Ltd (No 2), are well settled. On this motion the respondents did not oppose the stay prayers, and the court granted the stay of execution and the stay of arbitration proceedings.
The court identified Githunguri as the starting point of a line of authorities guiding rule 5(2)(b) applications, stated the twin conditions as settled and requiring no elaboration, then applied them pragmatically: the applicants' right to challenge the superior court's decision was undoubted, and counsel for the respondents did not oppose prayers (1), (2) and (3). The court therefore granted the stay of execution of the 19 April 2007 order and a stay of the arbitration proceedings pending the appeal, without an extended analysis of arguability.
The procedure for staying judicial proceedings pending arbitration under section 6 of the Arbitration Act.
Judicial proceedings in a matter subject to an arbitration agreement may be stayed under section 6 of the Arbitration Act, but only on the formal application of a party, made before that party takes any steps in the proceedings; the court cannot order the stay suo motu. The respondents duly moved the High Court, which stayed the applicants' suit and referred the dispute to arbitration under Article 23 of the KANU Constitution.
Explaining the provenance of the order under challenge, the court recorded that the respondents invoked section 6 of the Arbitration Act together with Article 23 of the KANU party constitution; that Musinga J found the respondents still KANU members bound by the party constitution, so the dispute fell within Article 23; and that the learned judge accordingly ordered reference of the dispute to a panel of arbitrators to be appointed by the National Chairman in consultation with the NEC within 30 days, staying the suit to facilitate the arbitration.
Whether a temporary injunction should issue restraining the elected KANU officials pending the appeal (prayer 4).
The injunction was refused. The court has a duty to protect KANU members against decisions in breach of the party constitution, but a reciprocal duty not to hamstring elected officials from performing the duties the electors bestowed on them. No resolution of the electors supported stopping the respondents; as the only National Officials, injuncting them might leave the party with no one in office.
The court balanced the applicants' undoubted right to challenge the superior court's decision against the likely effect of the order sought. The evidence was scanty: the decision for KANU to cooperate with ODM-K appeared to have been reached at a meeting of one of the party organs, but the court had no details and could not say whether it was validly made; that could be clarified at the hearing of the appeal. Justice, the court held, must look at both sides of the street, so it eschewed any order likely to paralyse KANU's operations.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules, the applicant must show (a) that the intended appeal is arguable or not frivolous, and (b) that unless a stay of execution, an injunction, or both, is granted, the appeal or intended appeal, if successful, will be rendered nugatory.
- A stay of judicial proceedings pending arbitration under section 6 of the Arbitration Act may be granted only on the formal application of a party, made before that party takes any steps in the proceedings; a court cannot stay a suit suo motu.
- In granting or refusing interim relief, a court must weigh the effect of the orders on both sides and will eschew making orders likely to paralyse the operations of an organisation, absent evidence (such as an electors' resolution) supporting the restraint sought.
Court orders
#- 1.Stay of execution of the order made on 19th April 2007 in Nakuru High Court Civil Case No. 54 of 2007 pending the hearing and determination of Civil Appeal No. NAK 8 of 2007 (UR) (prayer 2 granted).
- 2.Stay of any arbitration proceedings as ordered in the said suit pending the hearing and determination of Civil Appeal No. NAK 8 of 2007 (UR) (prayer 3 granted).
- 3.No order made on prayer (1) of the motion, which was spent.
- 4.Prayer (4), the temporary injunction against the respondents, declined and refused.
- 5.The costs of the motion shall be in Civil Appeal No. 88 of 2007.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 54 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules ('the Rules of this Court') - application for stay of execution and/or injunction pending appeal
Relief refused
#Temporary injunction (prayer 4) restraining the respondents from acting in or on behalf of KANU in a manner depriving the applicants of their statutory rights, from merging KANU with ODM-K, the Liberal Democratic Party or any other political party, from acting ultra vires the KANU Constitution, and from holding themselves out as members and officials of both KANU and ODM-K.
As worded, the prayer sought on the main an order grinding KANU's operations to a halt; the respondents are the only National Officials, so injuncting them might leave no one in office; no resolution of the electors was placed before the court supporting their removal; and the scanty evidence did not establish whether the decision to cooperate with ODM-K was validly made, a matter for the hearing of the appeal.
Costs
The costs of the motion shall be in Civil Appeal No. 88 of 2007.
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.
First an applicant must show that his intended appeal is arguable or that it is not frivolous. Secondly, that unless he is granted either a stay of execution or an injunction or both, as the case may be, his appeal or intended appeal, if successful, will be rendered nugatory.
A court before which such matter is pending cannot, suo motu, order a stay. It has to be moved by a formal application but before the party applying takes any steps in the proceedings.
While we agree that the applicants have an undoubted right of challenging the decision of the superior court and that the court has a duty to protect KANU members against decisions which are in breach of the party Constitution, it is our view that the court has a reciprocal duty to ensure that it does not hamstring elected officials from performing the duty or duties the electors have bestowed upon them.
Justice must look at both sides of the street, and consider the likely effect of the orders sought by a litigant.
But as matters stand now we eschew making any order likely to paralyse the operations of the party, KANU.
In the result as the respondents do not oppose the other prayers, the order which commends itself to us is to grant prayer (2) and (3) of the Notice of Motion dated 17th May 2007 and filed in court on the same day. Prayer (1) is spent and so we make no order thereon. We decline to grant prayer (4) for the reasons already stated. The costs of the motion shall be in Civil Appeal No. 88 of 2007. Orders accordingly.
Issues in the judgment
#Inconsistent numbering of the pending appeal: the prayers refer to 'Civil Appeal No. NAK. 8 of 2007 (UR)' while the body and the disposition refer to 'Civil Appeal No. 88 of 2007'. Both presumably denote the same appeal from the Nakuru High Court order.
Chronological inconsistency: the plaint is said to have been filed on 12th May 2007, yet the accompanying chamber summons 'bears the date 9th March, 2007' and is described as 'Filed with the plaint', and the superior court order being stayed is dated 19th April 2007 - all before the stated filing date of the plaint.
The third respondent's name is spelled inconsistently: the body of the ruling spells it 'Hon. Billow Kerro' (quoted below), while the cause title spells the surname 'KERROW'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "COUNCILLOR JOSEPH CHACHA MWITA & 3 others v UHURU KENYATTA & 6 others [2007] KECA 54 (KLR)", Case Analysis (2007). Civil Appli. Nai 111 of 2007 (UR. 73/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/54/eng@2007-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.