The National Assembly & another v Chief Justice Of The Republic Of Kenya & another; Justice (Interested Party) (Civil Application E097 of 2021) [2021] KECA 539 (KLR)
The bottom line
#The Court of Appeal paused the High Court case on dissolving Parliament, saying Parliament's appeal over who empanelled the judges deserves a full hearing.
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 applicants had an arguable appeal against the High Court's dismissal of the application and preliminary objection challenging the empanelling of the five-judge bench by the Deputy Chief Justice
- 2.Whether the intended appeal would be rendered nugatory absent stay of proceedings
- 3.Whether the public interest favours the grant of stay pending appeal
Key legal issues
#Whether the powers under Article 165(4) of the Constitution to empanel a High Court bench can be exercised by the Deputy Chief Justice
The court found the point arguable without deciding it; whether the Article 165(4) power is exclusively the Chief Justice's and non-administrative is a bona fide point meriting consideration on appeal.
The applicants contend Article 165(4) vests the power to assign judges to hear certified substantial questions of law in the Chief Justice alone and that it is not administrative. The court observed that an arguable point is not one that must ultimately succeed, and held that whether the Deputy Chief Justice was empowered to empanel the bench was not an idle point but an arguable one.
Whether the intended appeal would be rendered nugatory absent stay
Yes. If on appeal it were held that the Deputy Chief Justice lacked power to empanel the bench, proceedings before that bench would have been completed to no practical effect.
The court reasoned that if the appeal succeeded, a victory would have no practical effect because the substantive petition would already have been heard and determined by the impugned bench. That satisfies the nugatory-prong of the rule 5(2)(b) test and justifies staying further High Court proceedings pending the appeal.
Whether public interest supports the grant of stay
Yes. The matter lies in the public interest domain and the applicants should exhaust their appellate rights.
Applying the third principle identified by the Supreme Court in Munya, the court considered the public interest, constitutional values and proportionate magnitudes. Given the national importance of the constitutional interpretation questions and the petitions before the High Court, it was proper that the applicants exhaust their appellate rights, subject to a 30-day filing deadline to protect the public interest.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must demonstrate an arguable appeal, that the appeal would be rendered nugatory absent stay, and where relevant, the public interest consideration.
- A single arguable point suffices; the applicant need not establish a multiplicity of arguable points and the point need not necessarily succeed.
Court orders
#- 1.Stay of further proceedings before the High Court at Nairobi in Petition No. E291 of 2020 (consolidated) pending hearing and determination of the intended appeal
- 2.The appeal to be filed within 30 days and prioritized for hearing
- 3.In default of filing the appeal as ordered, the order for stay will lapse
- 4.Costs to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. E291 of 2020 (consolidated)
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010
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.
An applicant must, firstly, demonstrate that there is an arguable appeal – that there is a bona fide point of law or fact that calls for a response from the adverse party, a point that merits consideration and decision by the Court.
A single arguable point will suffice as an applicant is not required to establish a multiplicity of arguable points.
if it was to be held on appeal that the Deputy Chief Justice had no power to empanel the bench the appeal would be a victory with no practical effect, an academic exercise.
In view of the public interest involved in the petitions at the High Court let the appeal be filed within 30 days of today and be prioritized for hearing. In default of filing as ordered the order for stay will lapse.
The Motion succeeds and is granted. Let costs be in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Assembly v Gachagua & 66 others[2026] KESC 19 (KLR)30 Jan 2026
- Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)[2025] KECA 790 (KLR)9 May 2025
Cite this brief
#Cite this brief
Caselaw, "The National Assembly & another v Chief Justice Of The Republic Of Kenya & another; Justice (Interested Party) (Civil Application E097 of 2021) [2021] KECA 539 (KLR)", Case Analysis (2021). Civil Application No. E097 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/539/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.