Hon Susan Wakarura Kihika, Governor Nakuru County Government & 2 others v Dr Magare Gikenyi J Benjam & 2 others
The bottom line
#Kenya's Court of Appeal paused a ruling that nullified Nakuru County's CEC recruitment and found the Governor in contempt, pending the county's appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
Yes - the draft memorandum raised weighty issues, including whether the trial judge arrogated herself jurisdiction over a dispute with statutory remedies and whether contempt could lie for a fresh nomination process not challenged in court.
The court perused the draft memorandum of appeal and found the contention that the learned judge erred by arrogating herself jurisdiction over a dispute with statutory remedies to be a weighty issue that could not be wished away. The court was careful to say no more on arguability lest it embarrass the eventual appeal bench, but was satisfied the twin threshold was partly met.
Whether the appeal would be rendered nugatory absent stay
Yes - the 1st applicant had been found in contempt by a court possibly lacking jurisdiction, and if imprisoned she would lose her liberty, which cannot be compensated by damages.
The court reasoned that the 1st applicant had already been found in contempt by a court whose jurisdiction was under challenge; if the jurisdictional challenge succeeded on appeal, the appeal would be an exercise in futility. Further, imprisonment would entail loss of the right to liberty, an irreversible harm not compensable by damages, satisfying the nugatory prong of the Rule 5(2)(b) test.
Whether a valid Notice of Appeal had been lodged
Yes - a Notice of Appeal dated March 22, 2023 was annexed to the motion, so the objection had no basis.
The 1st respondent argued that the Court's jurisdiction had not been properly invoked because no valid Notice of Appeal was placed before the Court. The court examined the motion and found a Notice of Appeal dated March 22, 2023 annexed to it, and held the contention was without any basis.
Legal principles established
#- To obtain stay of execution under Rule 5(2)(b), an applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.
- An arguable appeal need not be one that must necessarily succeed; it suffices that it is not frivolous or idle.
Court orders
#- 1.An order of stay of execution issued staying in entirety the Ruling and Orders of Wasilwa, J dated March 21, 2023 in Nakuru ELRC Petition No 013 of 2022 consolidated with ELRC Petition No 014 of 2022, pending the hearing and determination of the intended appeal
- 2.Costs of the motion to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Petition No 013 of 2022, consolidated with ELRC Petition No 014 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon Susan Wakarura Kihika, Governor Nakuru County Government & 2 others v Dr Magare Gikenyi J Benjam & 2 others", Case Analysis (2023). Civil Application No E045 of 2023 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/989/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.