The Hon. Attorney General & Another v Coalition for Reform and Democracy & Others
The bottom line
#Kenya's Court of Appeal refused to suspend a High Court order blocking parts of the Security Laws Act, ruling constitutional rights outweigh security concerns.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear the application notwithstanding alleged defects in the notice of appeal
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal will be rendered nugatory unless the stay orders sought are granted
Key legal issues
#Jurisdiction over a defective notice of appeal
Typographical errors and a missing Deputy Registrar endorsement on the notice of appeal are not fatal where no party is misled or prejudiced.
The notice wrongly stated an appeal to the Supreme Court and a 2014 decision date, and lacked endorsement. Applying the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, the Court held that striking out on such technicalities would negate justice; the service objection was also premature as the service period had not expired.
Arguability of the intended appeal
The appeal, raising 15 grounds including jurisdiction of a single judge to suspend statutes and interpretation of Article 23, is eminently arguable.
An arguable appeal need not ultimately succeed; a single bona fide arguable point suffices. The draft memorandum raised substantial questions on the single judge's jurisdiction, Article 23, and presumption of constitutionality. The Court refrained from commenting on the merits because another bench was to hear the petitions.
Whether the appeal would be rendered nugatory without a stay
The appeal would not be rendered nugatory; the State failed to show any lacuna or grave consequences from the suspension of eight sections.
The Court balanced the State's duty to protect against its duty to safeguard Bill of Rights. National security is subject to the Constitution and Parliament. All other laws remained in operation, so security agencies could still act. Constitutional supremacy outweighs public interest, and lifting conservatory orders requires a very strong case.
Legal principles established
#- Both limbs of the rule 5(2)(b) test - arguability and nugatory effect - must be satisfied for a stay to issue.
- A very strong case must be made out before the Court of Appeal will lift conservatory orders suspending provisions of a statute pending determination of constitutionality.
- The State must demonstrate that suspension of a statute has occasioned a lacuna likely to cause grave consequences to the populace.
- Constitutional supremacy under Article 2 ranks higher than public interest.
- Errors in a notice of appeal that neither mislead nor prejudice respondents are not fatal, per Article 159(2)(d).
Court orders
#- 1.Application dated 6th January, 2015 dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 628 of 2014 (as consolidated with Petition No. 600 of 2014)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 11 and 47 of the Court of Appeal Rules
Relief refused
#Stay of the High Court conservatory orders suspending specified provisions of the Security Laws (Amendment) Act, 2014
Intended appeal arguable but not rendered nugatory; State failed to show a lacuna or grave consequences from the suspension; constitutional supremacy outweighs public interest
Costs
We make no order as to costs.
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.
For all these reasons, we decline to grant the orders sought by the applicant and dismiss the application dated 6th January, 2015. We make no order as to costs.
It is not enough for an applicant to satisfy one of the two limbs aforesaid, both of them must be satisfied.
a very strong case has to be made out before this Court can lift the conservatory order
Constitutional supremacy as articulated by Article 2 of the Constitution has a higher place than public interest.
They are not low-value optional extras to be easily trumped or shunted aside at the altar of interests perceived to be of greater moment in moments such as this.
In our view, the errors in the notice are not fatal. The respondents have neither been misled nor prejudiced thereby.
Issues in the judgment
#Notice of appeal filing date inconsistently stated
High Court orders dated 2nd January 2014 (sic) in the motion though ruling was 2nd January 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Hon. Attorney General & Another v Coalition for Reform and Democracy & Others", Case Analysis (2015). Civil Application No. NAI 2 of 2015 (UR 2/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/994/eng@2015-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.