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Court of AppealDismissedCivil Application 182 of 2009· [2009] KECA 95 (KLR)

TITUS KIONDO MUYA V PETER NJOROGE BAIYA & 3 OTHERS [2009] KECA 95 (KLR)

Court of Appeal of Kenya
25 September 2009
ROR.S.C. OmoloSBS.E.O. BosireJOJ.W. Onyango Otieno
1,404 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause payment of Kshs 1 million in election petition costs because the winning side could clearly afford to refund them if the appeal succeeded.

What this practically means

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Executive summary

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This is a single ruling of the Court of Appeal at Nairobi (Omolo, Bosire and Onyango Otieno, JJA) on a notice of motion by Titus Kiondo Muya under Rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of execution of taxed costs of Kshs. 1,000,000 and Kshs. 50,000 awarded to Peter Njoroge Baiya following the striking out of Election Petition No. 31 of 2008, which had challenged Baiya's election as MP for Githunguri. The High Court (Waweru, J) had dismissed the applicant's reference against the Deputy Registrar's taxation. The applicant's intended appeal was struck out as incompetent for being filed out of time under the National Assembly and Presidential Elections Act (Cap 7), and he sought to restart the appellate process while obtaining a stay. Applying the settled twin-test for Rule 5(2)(b) relief, the court accepted that the intended appeal - which attacks the exercise of discretion in the taxation - was arguable, but found the applicant had failed to establish the nugatory aspect: the 1st respondent, a member of parliament drawing substantial remuneration and a practising advocate with a thriving Nairobi practice, had disclosed his sources of income, and the applicant led no evidence of his impecuniosity. Both conditions must be satisfied; failing the second, the application was dismissed with costs to the 1st respondent. The ruling does not disturb the High Court decision and expresses no concluded view on the merits of the intended appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court held the intended appeal was arguable without expressing concluded views on its merits.

Reasoning

The court noted that the intended appeal challenges the exercise of judicial discretion by the Deputy Registrar and Waweru, J. Weighing the circumstances, it found the intended appeal arguable, while deliberately abstaining from expressing concluded views that could prejudice the eventual hearing or embarrass the bench that would hear the appeal.

p. 2
02

Whether the intended appeal would be rendered nugatory without a stay

Holding

The applicant failed to show the 1st respondent could not refund the taxed costs, as he is an MP with substantial remuneration and a practising advocate, and no evidence of impecuniosity was adduced.

Reasoning

The applicant claimed ignorance of the 1st respondent's sources of income, but the court found he was aware the 1st respondent is a member of parliament earning substantial remuneration and an advocate with a thriving Nairobi practice. No evidence or affidavit was sworn to show the 1st respondent is impecunious or unable to reimburse costs if the appeal succeeded. Having failed the second condition, the application had to be dismissed.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two conditions: that the appeal or intended appeal is arguable, and that unless the order sought is granted, the success of the appeal will be rendered nugatory.
  • An appellate court will be slow to interfere with the exercise of judicial discretion unless the decision is plainly wrong or was reached on a wrong principle.

Court orders

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  1. 1.Dismissal of the application for stay of execution under Rule 5(2)(b)
  2. 2.Costs of the application to the 1st respondent
On appeal from
High Court of Kenya at Nairobi
H.C. Election Petition No. 31 of 2008 (taxation reference ruling)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TITUS KIONDO MUYA V PETER NJOROGE BAIYA & 3 OTHERS [2009] KECA 95 (KLR)", Case Analysis (2009). Civil Application 182 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/95/eng@2009-09-25

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