The Hon. Attorney General v Tolphin Nafula & 5 others
The bottom line
#Kenya's Court of Appeal paused orders blocking the Chief Justice recruitment, ruling that courts must first resolve challenges to their own jurisdiction before issuing any orders.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Attorney-General as an interested party to appeal
The preliminary objection fails; the Attorney-General has locus to file the appeal.
The 4th respondent argued, relying on the Fugicha decision, that an interested party lacks capacity to appeal. The Court found no relevant authority for that novel proposition, held Fugicha of little aid, and invoked rule 75(1) of the Court of Appeal Rules permitting any person who desires to appeal to give notice in writing.
Arguability of the intended appeals
The appeals are eminently arguable because the High Court issued drastic conservatory orders without first disposing of the objection to its jurisdiction.
The Court reiterated the Lillian 's' dictum that jurisdiction is everything and that proceedings conducted without jurisdiction are null and void. Failing to pronounce on a strenuously argued jurisdictional objection based on Article 251 before granting conservatory orders was a standout error rendering the appeals arguable.
Nugatory aspect and public interest
The public interest and the cause of justice are best served by granting stay, since allowing conservatory orders issued without jurisdiction to stand risks invalidity and a constitutional crisis from unmet statutory timelines.
The Court weighed the 6-month limit on an Acting Chief Justice, the statutory timelines for appointment, and the prospect that the impugned orders, being issued without jurisdiction, would be null and void ab initio. It declined to act on unproven fears of manipulation, holding the rule of law cannot be achieved by breach of law.
Permanence of a completed recruitment process
Completion of the recruitment process does not immunize any procedural or substantive wrong; the High Court may still invalidate a concluded appointment.
To allay the respondents' fear that allowing the process to conclude would render their petitions academic, the Court emphasised Commissioners' constitutional responsibility and that an appointment, even once made and sworn, can be invalidated if illegality is proved.
Legal principles established
#- A properly-joined party to first-instance proceedings, including an interested party such as the Attorney-General, is not handicapped from filing an appeal if aggrieved.
- An applicant under Rule 5(2)(b) must show an arguable appeal - a single bona fide point suffices - and that the appeal would be rendered nugatory absent stay; public interest is an additional consideration.
- A court seized of a challenge to its jurisdiction must decide that question before issuing consequential orders such as conservatory orders.
Court orders
#- 1.The conservatory orders granted by the High Court on 21st April 2021 barring the continuation of the recruitment process for the Chief Justice and the commencement of the process of appointment of a Judge of the Supreme Court stayed pending the hearing and determination of the intended appeals
- 2.Any further proceedings in the consolidated petitions at the High Court stayed pending the hearing and determination of the intended appeals
- 3.Records of appeal to be filed and served within thirty (30) days, failing which the stay orders shall automatically lapse
- 4.The intended appeals to be fast-tracked for hearing expeditiously on high priority
- 5.Costs shall be in the intended appeals
- On appeal from
- High Court at Milimani
- Three consolidated petitions (including Petition No. E114 of 2021)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- The Chief of The Kenya Defence Forces & 1 other v Leruk Murusi & 8 others[2026] KECA 326 (KLR)27 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "The Hon. Attorney General v Tolphin Nafula & 5 others", Case Analysis (2021). Civil Applications Nos. E121, E128 & E129 of 2021 (consolidated; E121 of 2021 as lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/647/eng@2021-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.