Fred Okengo Matiang’i, Cabinet Secretary, Ministry of Interior & Coordination of National Government & 6 others v Miguna Miguna; Kenya National Commission on Human Rights & another (Interested Parties) [2021] KECA 525 (KLR)
The bottom line
#Kenya's Court of Appeal refused to suspend the Kshs 7 million judgment against Matiang'i and other state officials because they failed to show what real harm a stay would prevent.
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 intended appeal is arguable
- 2.Whether, unless stay is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the applicants demonstrated an arguable appeal
The Court found the appeal arguable on the ground raising the question whether a citizen by birth can lose citizenship upon acquiring another citizenship.
The applicants set out about fourteen grounds of appeal in the draft memorandum. The Court held that a single bona fide arguable point suffices, and the citizenship question was not an idle issue deserving determination only after full hearing of the substantive appeal.
Whether the intended appeal would be rendered nugatory absent stay
The applicants failed to demonstrate the nugatory limb; they did not canvass it in their grounds or supporting affidavit and showed no real loss or prejudice.
Strictly speaking the applicants did not plead the nugatory principle in the application or supporting affidavit. Their grounds - contempt exposure and bad precedent - were issues for the substantive appeal. The Court could discern no real loss or prejudice absent a stay, so the application failed on this limb.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court on both the arguability and the nugatory limbs; satisfying only one limb does not suffice.
- An arguable appeal need not be one that will necessarily succeed; a single bona fide arguable ground suffices.
- In a Rule 5(2)(b) application the Court must not make definitive or final findings of fact or law, as doing so may embarrass the hearing of the main appeal.
Court orders
#- 1.Application for stay of execution pending appeal 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
- Petition No. 51 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (interlocutory jurisdiction to grant stay pending appeal)
Relief refused
#Stay of execution of the High Court judgment, decree and orders pending appeal
Applicants failed to satisfy both limbs of Rule 5(2)(b); they did not canvass or demonstrate the nugatory limb
Costs
No order as to costs, the application having been undefended
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.
Accordingly, we dismiss this application with no order as to costs as the application was not defended.
An applicant must satisfy the Court on both the twin principles.
an applicant needs to demonstrate both limbs and demonstrating only one limb will not suffice
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.
Issues in the judgment
#The judgment refers to the applicants as applicants throughout, though the heading frames the matter as an application against a High Court judgment and the notice of motion is supported by a draft memorandum of appeal; the applicants are in substance intended appellants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Okengo Matiang’i, Cabinet Secretary, Ministry of Interior & Coordination of National Government & 6 others v Miguna Miguna; Kenya National Commission on Human Rights & another (Interested Parties) [2021] KECA 525 (KLR)", Case Analysis (2021). Civil Application No. 386 of 2018 (UR. 314/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/525/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.