Katiba Institute v Attorney General & 9 others (Civil Application 201 of 2018) [2018] KECA 115 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block the swearing-in of JSC nominees, holding that a successful appeal could still invalidate their appointments after the fact.
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 application is one for a conservatory order as distinct from an application for stay of execution of a negative order
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if the conservatory order sought is not granted
- 4.Whether public interest favours the grant of a conservatory order prohibiting the swearing-in of the 5th, 6th and 7th respondents as members of the JSC
Key legal issues
#Distinction between a conservatory order and an application for stay of execution
The application is for a conservatory order, not for stay of execution, because the trial court made no positive order capable of being stayed
The High Court dismissed most of the petition, making no positive order against any party. Following Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, Western College v Oranga and Omboga v Maranga, a negative order is incapable of execution and thus of stay. The Court therefore treated the motion purely as an application for a conservatory order under Rule 5(2)(b) aimed at protecting the subject matter of the intended appeal.
Whether the intended appeal is arguable
The intended appeal is arguable; both sides demonstrated arguable points of law
The Court identified arguable questions including whether the trial judge erred in interpreting Articles 171 and 250 of the Constitution in isolation from Articles 10 and 73(2)(a), and in stating that not all public appointments involve public participation. It reiterated that an arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices.
Whether the intended appeal would be rendered nugatory absent a conservatory order
The appeal would not be rendered nugatory even if the nominees are sworn in, because the Court can invalidate their appointment retrospectively
The applicant's own alternative prayer seeking invalidation of the nominations acknowledged that the Court retains power to nullify the appointments after the respondents take office. Citing Macfoy v United Africa Co. Ltd., the Court held that a successful appeal would not be an academic exercise, since unlawful nomination and appointment can be declared null and void retroactively.
Public interest in relation to grant of conservatory orders
The application was refused on the nugatory-prong alone; the Court did not found its refusal on public interest
Although the respondents argued that a fully constituted JSC with public representation serves the public interest, and the applicant argued the opposite, the Court's determination turned on the nugatory-prong test. Having found the appeal not nugatory, the Court declined the conservatory order without making a separate public-interest finding.
Legal principles established
#- A single bona fide arguable ground of appeal suffices to establish that an intended appeal is arguable
- An appeal is rendered nugatory only if what is sought to be stayed is irreversible or incapable of reasonable compensation; where the court retains power to nullify the impugned act after it has occurred, the appeal is not rendered nugatory
- A negative order of the High Court, which orders no party to do or refrain from doing anything, is incapable of execution and hence incapable of stay
Court orders
#- 1.The Notice of Motion application dated 12th July 2018 is 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
- Constitutional Petition dated 8th March 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant conservatory orders pending an intended appeal)
Relief refused
#Conservatory order prohibiting the swearing-in of the 5th, 6th and 7th respondents as members of the JSC pending the hearing and determination of the intended appeal
The intended appeal is arguable but would not be rendered nugatory if the respondents are sworn in, because the Court retains power to invalidate their nomination and appointment even after they take office
Costs
No order as to costs - the application was dismissed with 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.
In the final analysis, the applicant has not satisfied us that the intended appeal shall be rendered nugatory if a conservatory order is not granted. We decline to grant the order sought with the consequence that the Notice of Motion application dated 12th July 2018 be and is hereby dismissed with no order as to costs.
An arguable appeal is not one which must succeed, it is suficient if a single bonafide arguable ground of appeal is raised.
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved
This alternative prayer perforce acknowledges that even if the 5th, 6th and 7th respondents were to be sworn in and take ofice, this Court has power to invalidate their membership to the JSC.
We appreciate that this is an application for a conservatory order and not an application for stay of execution.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katiba Institute v Attorney General & 9 others (Civil Application 201 of 2018) [2018] KECA 115 (KLR)", Case Analysis (2018). Civil Application No. Nai 172 of 2018 (Rule 5(2)(b) application; Notice of Motion dated 12th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/115/eng@2018-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.