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Court of AppealDismissedCivil Application No. 304 of 2017

Kaltuma Abdulahim Maalim v Saadia Ahmed Mumin & 3 others [2021] KECA 508 (KLR)

Court of Appeal of Kenya
4 June 2021
1,194 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a Wajir County Assembly seat court battle, confirming that an upcoming appeal alone does not justify staying proceedings.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Sichale and ole Kantai, JJ.A.) on a Notice of Motion dated 20th December 2017 brought under Rules 5(2)(b) and 47 of the Court's Rules by Kaltuma Abdulahim Maalim, seeking a stay of proceedings in High Court Judicial Review Application No. 576 of 2017 pending the lodging, hearing and determination of an intended appeal from Odunga, J's ruling of 21st November 2017 granting leave to Saadia Ahmed Mumin to file the substantive judicial review application. The dispute arose from the nomination of candidates for the Gender Special seat under Article 177(2) of the Constitution for the Wajir County Assembly, a consent order before the Political Parties and Disputes Tribunal ranking the applicant first, and conflicting Gazette Notices, after which the Clerk of the Wajir County Assembly swore in the 1st respondent. The applicant's preliminary objection that the judicial review was improperly brought in place of an election petition was overruled by the High Court. Applying the settled twin test for rule 5(2)(b) relief, drawn from Ishmael Kagunyi Thande v Housing Finance Kenya Ltd, the court held that the applicant had failed to demonstrate that the intended appeal would be rendered nugatory if the High Court proceedings continued, since she would retain a right of recourse by way of appeal or otherwise. Having failed the second limb, the court did not consider arguability. The motion was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant satisfied the twin principles for grant of stay of proceedings under rule 5(2)(b), namely an arguable appeal and that the appeal would be rendered nugatory absent stay
  2. 2.Whether the intended appeal would be rendered nugatory if the High Court judicial review proceedings were to proceed to conclusion

Key legal issues

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01

Twin principles governing rule 5(2)(b) applications

Holding

The jurisdiction under rule 5(2)(b) is original and discretionary, guided by the settled twin principles of arguability and nugatory-ness.

Reasoning

The court adopted its prior statement in Ishmael Kagunyi Thande v Housing Finance Kenya Ltd, restating that the rule 5(2)(b) jurisdiction is both original and discretionary. The applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent the stay or injunction sought. Both limbs are cumulative requirements for the grant of stay of proceedings.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The applicant failed to establish the nugatory limb; the dismissal of the preliminary objection on jurisdiction and the continuation of the judicial review proceedings would not render any appeal nugatory because she retains appellate recourse.

Reasoning

The applicant argued that if the High Court judicial review, founded on a dispute properly sounding in an election petition, were to proceed, her intended appeal would be nugatory. The court disagreed, reasoning that even a conclusion of the proceedings below would leave the applicant with recourse by way of appeal. With the second limb unsatisfied, the court did not examine arguability and dismissed the motion.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two well-settled principles: that the appeal or intended appeal is arguable, and that unless stay or injunction is granted the success of the appeal will be rendered nugatory.
  • Where the nugatory limb of the rule 5(2)(b) test fails, the court need not consider whether the appeal is arguable.
  • Proceedings in the High Court proceeding to conclusion does not by itself render an intended appeal nugatory, since a party retains a right of recourse by way of appeal or otherwise.

Court orders

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  1. 1.The Notice of Motion dated 20th December 2017 is dismissed with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Judicial Review Appl. No. 576 of 2017
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules (application for stay of proceedings pending an intended appeal)

Relief refused

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Stay of further proceedings in High Court Judicial Review Application No. 576 of 2017 pending the hearing and determination of the application and of the intended appeal

The applicant failed to demonstrate that the intended appeal would be rendered nugatory if stay was not granted, since she would still have a right of recourse by way of appeal; the second limb of the rule 5(2)(b) test not being satisfied, the court did not consider arguability

p. 2

Costs

Dismissed with no order as to costs - each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The jurisdiction of the Court under rule 5(2) (b) is not only original but also discretionary. Two principles guide the court in exercise of that jurisdiction. These principles are well settled.
p. 2Rule 5(2)(b) jurisdiction and guiding principles
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
p. 2Twin test for stay under rule 5(2)(b)
In our view, we find that the Applicant has not shown that the appeal will be rendered nugatory absent stay, as even if the proceedings at the High Court were to proceed to conclusion, the applicant still has a right of recourse by way of an appeal or otherwise.
p. 2Failure of the nugatory limb
The upshot of the above is that, the Notice of Motion dated 20th December 2017 is hereby dismissed with no order as to costs.
p. 2Final orders and costs

Issues in the judgment

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minor

The coram names the third judge as 'KANTAI, JJ.A.' in the header but the signature block reads 'S. ole KANTAI'; also the applicant is rendered 'Kaltuma Abdulahim Maalim' in the cause title but 'Kaltuma Abdullahi' in the election petition named in the background.

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, "Kaltuma Abdulahim Maalim v Saadia Ahmed Mumin & 3 others [2021] KECA 508 (KLR)", Case Analysis (2021). Civil Application No. 304 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/508/eng@2021-06-04

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