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Court of AppealDismissedCivil Application No. 386 of 2018 (UR. 314/2018)

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)

Court of Appeal
4 June 2021
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Nambuye, Karanja and Warsame, JJ.A.) delivered on 4th June 2021 on an application for stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules. The application was lodged by seven senior state officials, led by Cabinet Secretary Dr. Fred Matiang'i, against the judgment of E. Mwita, J in Petition No. 51 of 2018, in which the High Court found that Miguna Miguna had been illegally held, tortured and deported, and granted certiorari, mandamus and declarations, general damages of Kshs. 7 million, Kshs. 270,000 for his damaged house, and costs. The applicants contended the appeal was arguable and that absent stay they faced contempt of court orders; the respondent filed no reply and the interested parties did not participate. The Court applied the settled twin principles from Multimedia University v Naituli and Stanley Kangethe Kinyanjui v Tony Ketter: an applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay. While the Court accepted that the appeal was arguable - particularly the question whether a citizen by birth can lose citizenship on acquiring another citizenship - it found the applicants had not canvassed or demonstrated the nugatory limb, and that exposure to contempt and precedent arguments were matters for the substantive appeal. The Court dismissed the application with no order as to costs, the application being undefended. The High Court judgment itself was not disturbed and stands, though the substantive appeal remains available.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless stay is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the applicants demonstrated an arguable appeal

Holding

The Court found the appeal arguable on the ground raising the question whether a citizen by birth can lose citizenship upon acquiring another citizenship.

Reasoning

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.

p. 3
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Application for stay of execution pending appeal dismissed
  2. 2.No order as to costs

The bench

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

majority
majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
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

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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

p. 4

Costs

No order as to costs, the application having been undefended

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.

Accordingly, we dismiss this application with no order as to costs as the application was not defended.
p. 4Disposition
An applicant must satisfy the Court on both the twin principles.
p. 3Rule 5(2)(b) twin principles
an applicant needs to demonstrate both limbs and demonstrating only one limb will not suffice
p. 3Nugatory limb requirement
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.
p. 3Meaning of nugatory

Issues in the judgment

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minor

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

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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, "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.