JOSEPH CHACHA MWITA & 3 OTHERS v UHURU KENYATTA & 6 OTHERS [2007] KECA 258 (KLR)
The bottom line
#Kenya's Court of Appeal stopped some KANU-related proceedings but refused an injunction that would have halted the party's operations.
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 order of Musinga J dated 19 April 2007 is arguable or frivolous.
- 2.Whether, unless a stay of execution and/or an injunction is granted, the intended appeal, if successful, would be rendered nugatory.
- 3.Whether a temporary injunction should issue restraining the respondents from acting as officials of KANU, merging KANU with ODM-K or any other party, or acting ultra vires the KANU Constitution, pending the hearing and determination of the appeal.
Key legal issues
#The principles governing applications for stay of execution or injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules.
The governing test is two-limb: the applicant must show an arguable (non-frivolous) intended appeal, and that the appeal will be rendered nugatory if stay of execution, injunction or both is not granted.
The court restates the classic two-limb test drawn from Githunguri v. Jimba Credit Corporation Ltd (No.2) and other recent authorities, treating the criteria as well settled and requiring no further elaboration. These twin requirements frame the entire discretion exercised in this ruling and are the standard every lower court must apply on a similar rule 5(2)(b) application.
Whether the court should grant a temporary injunction restraining elected KANU officials from performing their functions pending appeal.
The injunction was refused: while courts protect party members against breaches of a party constitution, they have a reciprocal duty not to hamstring elected officials, and the prayer as worded would paralyse the party's operations.
The court acknowledges the applicants' undoubted right to challenge the superior court's decision and the duty to protect KANU members against breaches of the party constitution. But it holds there is a reciprocal duty not to hamstring elected officials performing the duties bestowed on them by electors. No resolution of the electors supporting the injunction was placed before the court, and since the respondents appeared to be the only national officials, injuncting them might leave KANU with no one in office.
The evidential basis and balancing exercise required before making interlocutory orders in a party-political dispute.
Absent evidence on whether the National Delegates Conference decision to co-operate with ODM-K was validly made, the court would make no order likely to paralyse KANU's operations; that question was left to the appeal.
The court emphasises that interlocutory orders must rest on evidence and weigh their likely effect on both sides. On the scanty record it could only discern that the decision to co-operate with ODM-K was reached at a meeting of a party organ, without details of whether it was validly made. Rather than pre-empt the appeal, the court eschewed any order grinding KANU to a halt, granting only the unopposed stay prayers.
The procedure for staying judicial proceedings under section 6 of the Arbitration Act where the matter is subject to an arbitration agreement.
A stay under section 6 may be granted only on the formal application of a party, made before that party takes any steps in the proceedings; the court has no power to order a stay suo motu.
Expositing section 6 of the Arbitration Act, the court explains that judicial proceedings in a matter subject to an arbitration agreement may be stayed only on a party's formal application made before that party takes steps in the proceedings. The respondents had appropriately moved the superior court, invoking Article 23 of the KANU Constitution, and Musinga J stayed the suit and referred the dispute to arbitration. This statement frames the order under appeal but was not itself contested before this court.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules, the applicant must first show that the intended appeal is arguable or not frivolous and, secondly, that unless a stay of execution, an injunction or both is granted, the appeal or intended appeal, if successful, will be rendered nugatory. Lower courts are bound to apply these settled criteria.
- Under section 6 of the Arbitration Act, a court cannot stay proceedings before it suo motu; it may do so only on a formal application by a party, made before that party takes any steps in the proceedings.
- In deciding whether to grant interlocutory relief, a court must consider the likely effect of the orders sought on both sides and must act on evidence and sound legal principles, not on assumptions about the wishes of those represented.
Court orders
#- 1.Stay of execution of the order made on 19 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 the arbitration proceedings as ordered in the said suit pending the determination of Civil Appeal No. NAK 8 of 2007 (UR) (prayer 3 granted).
- 3.No order on prayer (1) of the Notice of Motion, which was recorded as spent.
- 4.Prayer (4), the temporary injunction sought against the respondents, declined.
- 5.Costs of the motion made costs 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 - application for stay of execution and injunction pending appeal
Relief refused
#Prayer (4) of the Notice of Motion dated 17 May 2007 - a temporary injunction restraining the respondents from acting for KANU, merging KANU or its affairs with ODM-K, LDP or any other party, acting ultra vires the KANU Constitution, or holding themselves out as members and officials of both KANU and ODM-K, pending the appeal.
As worded the prayer sought mainly an order grinding to a halt the operations of KANU; the respondents appeared to be the only national officials, so injuncting them could leave the party with no one in office; and no resolution of the electors supporting such an order had been placed before the court.
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.
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.
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.
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.
But as matters stand now we eschew making any order likely to paralyse the operations of the party, KANU.
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.
Issues in the judgment
#Internal chronological inconsistency: the plaint is said to have been filed on 12 May 2007, yet the chamber summons filed with it bears the date 9 March 2007, and the superior court's order staying that same suit was made on 19 April 2007 - before the stated filing date.
The prayers refer to the intended appeal as 'Civil Appeal No. NAK .8 of 2007 (UR)', while the ruling elsewhere refers to 'Civil Appeal No. 88 of 2007', including in the costs order - apparently the same appeal with a typographical discrepancy in the number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH CHACHA MWITA & 3 OTHERS v UHURU KENYATTA & 6 OTHERS [2007] KECA 258 (KLR)", Case Analysis (2007). Civil Application No. 111 of 2007 (UR. 73/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/258/eng@2007-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.