https://new.kenyalaw.org/akn/ke/judgment/keca/2026/919

Mudibo v Independent Boundaries and Electoral Commission & 6 others (Civil Application E134 of 2025) [2026] KECA 919 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 919 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E134 of 2025 JM Mativo, MB Kairaria & AI Hassan, JJA May 15, 2026 Between Andrew Mudibo Applicant and Independent Boundaries and Electoral Commission 1st Respondent National Olympics Committee of Kenya 2nd Respondent Sports Disputes Tribunal 3rd Respondent John Ogolla 4th Respondent Kenya Table Tennis Association 5th Respondent Sports Registrar 6th Respondent Daniel Kimando 7th Respondent (An application for stay of execution against the ruling of the High Court of Kenya at Bomet (J. Ng’arng’ar, J.) dated 20th November 2025 in JR No. E006 of 2025) Ruling 1.The application before us is dated 9th December 2026. It is brought under Rule 5 (2) (b) of the Court of Appeal Rules, 2022. Andrew Mudibo (the applicant), is beseeching this Court to grant him an order of stay restraining the 2nd respondent (the National Olympic Committee of Kenya (NOC-K) from publishing John Ogolla (the 4th respondent) as the Secretary General of NOC-K and/or restraining the 4th respondent from assuming and carrying out the functions of the Office of Secretary General of NOC-K pending the hearing and determination of his intended appeal. He also prays that this Court grants him any other order it may deem fit to meet the interests of justice. Lastly, he prays for costs of the application to be provided for. 2.The application is premised on the following grounds: (a) the High Court in a ruling rendered 20th November 2025 in Bomet HCJR No. E006 of 2025 by Ngar’ngar, J. dismissed his judicial review application in which he sought the writs of certiorari, mandamus and prohibition to quash the impugned ruling; (b) pursuant to the said ruling, the 2nd respondent will proceed to publish the 4th respondent as the elected Secretary General of NOC-K, after which he will assume office and proceed to carry out the functions of the said office despite the manifest illegalities in his ascension to that office. (c) the impugned decision effectively restored the decision of the Sports Dispute Tribunal rendered on 17th June 2025 which barred the applicant from contesting the position of NOC-K and also decreed that the Kenya Table Tennis Association, was not a duly registered Sports Organization under the Sports Act, 2013 a decision that affects athletes who participate in local events like the Kenya Secondary School games and players who represent the National team internationally whose entry/ registration is facilitated by the 5th respondent; (c) the impugned elections were marred by illegalities; (d) the intended appeal raises serious questions of law; (d) the applicant risks suffering substantial loss absent of stay; (e) the applicant is ready to comply with any conditions this Court may impose as a price for the stay sought, and, (f) the respondents will suffer no prejudice. 3.The 2nd respondent filed a replying affidavit dated 14th January 2026 in which he averred that: (a) what is sought to be restrained has already occurred because the 4th respondent had already been declared as the Secretary General in NOC-K and he has since assumed office as the Secretary General; (b) the applicant has not satisfied the threshold to merit the orders sought; (c) the intended appeal is not arguable because the issues urged were litigated and determined by the High Court which correctly held that the applicant failed to exhaust the statutory dispute resolution mechanism under the Sports Act, 2013 and the Fair Administrative Action Act. 4.The 4th respondent opposed the application vide his replying affidavit dated 20th December 2025. The bulk of his grounds address the intended appeal as opposed to an application under Rule 5 (2) (b). However, relevant to this application are the following grounds:(a)the intended appeal is not arguable;(b)that the appeal will not be rendered nugatory if the stay is refused, and,(c)the applicant ought to have filed an appeal at the Sports Disputes Tribunal within 30 days of the elections in compliance with Regulation 20 (7) of the Sports Registrar Regulations Legal Notice No. 158 of 2016. 5.The applicant filed a further affidavit dated 20th February 2026 maintaining that his application has not been overtaken by events and described the assertion that he ought to have appealed to the Sports Disputes Tribunal as untenable. 6.We heard this application virtually on 22nd April 2022. Learned Counsel Mr. Mongare appeared for the applicant. Mr. Arusei appeared for the 1st and 2nd respondents, Mr. Gwandaru appeared for the 4th respondent while Mr. Wachira appeared for the 7th respondent. He did not file any papers. However, he submitted orally. The 3rd, 5th and 6th respondents did not attend Court nor did they file and any papers. 7.The applicant’s counsel submitted that the intended appeal is arguable and that absent of stay, the appeal will be rendered nugatory. He relied on this Court’s decision in Trust Bank Limited & Ano. vs. Investech Bank & 3 Others [2000] eKLR which underscored the jurisdiction of this Court under Rule 5 (2) (b) of the Court of Appeal Rules, 2022 and the threshold an applicant must satisfy to be granted a stay under the said rule. 8.The 1st and 2nd respondents’ counsel in his submissions dated 4th March 2026 argued that the orders sought have been overtaken by events because the 4th respondent has already assumed office and he is currently performing his functions. Regarding the merits of the application, counsel submitted that a negative order cannot be stayed and relied on Charles Gichina Mwangi vs. Henry Mukora Mwangi [2000] eKLR. Counsel also submitted that the appellant’s intended appeal is not arguable because it offended the doctrine of exhaustion provided for failure to exhaust the dispute resolution mechanism provided under Section 58 of the Sports Disputes Tribunal Act and Regulation 20 (7) of the Sports Registrar Regulations which requires an aggrieved person to appeal to the Sports Tribunal within 30 days of the Elections. Counsel maintained that the said omission offends Section 9 (2) of the Fair Administrative Action Act. Lastly, counsel argued that that the applicant has not demonstrated that the appeal, if successful will be rendered nugatory. 9.The 4th respondent’s counsel in his submissions dated 9th March 2026 argued that the applicant has not demonstrated that he has an arguable appeal with chances of success and that the appeal, if successful will be rendered nugatory. 10.First, we will address the argument that the application before us has been overtaken by events. While there is no doubt that this Court can stay a contemplated execution before it starts, we must clarify that the purpose of stay under Rule 5 (2) (b) is to prevent an appeal from becoming infructuous. By logical extension, if the act is done, the stay itself is what becomes infructuous. This Court has consistently held that it cannot grant a stay of execution under Rule 5 (2) (b) for an action that has already been completed. This is because a "stay" is intended to suspend an ongoing or future process to preserve the subject matter of an appeal; it is not a tool to reverse or undo a fait accompli. 11.This Court in David Nkanata Magiri vs. Bernard Benedict Mungania & 4 Others [2012] eKLR unequivocally stated that an application for a stay of execution cannot be granted where execution had already taken place by the time the application was made. Similarly, in Kamindi Self Fridges Supermarkets Limited vs. Kiambu Murutani Company Limited (Civil Application E360 of 2022) [2024] KECA 10 (KLR) (25 January 2024) (Ruling) declined to grant an order of stay maintaining that what the applicant was seeking was to "reverse or undo what had already taken place." It asserted that Rule 5 (2) (b) does not contemplate such a situation, because the jurisdiction is meant to preserve the status quo, not restore it after it has been changed. Also, in United Insurance Co Ltd vs. Mercedes Sanchez Ru Tussel [2012] eKLR, the Court declined to grant a stay after it was established that where the decretal amount had already been paid, the application for stay was "overtaken by events," therefore, there was no longer anything to stay. 12.A reading of decided cases leaves no doubt that the primary purpose of Rule 5 (2) (b) is to prevent an appeal from being rendered nugatory (meaningless) by preserving the status quo. In this case, what is sought to be stayed has already taken place. There is nothing to stay. A stay under this rule is purely preventive. On this ground alone, this application collapses. 13.Having arrived at the above finding, we find no reason to address the question whether the applicant’s appeal is arguable and whether in the event his appeal succeeds, absent of stay, the appeal will be rendered nugatory. Accordingly, we dismiss the application dated 9th December 2026 with costs to the 1st, 2nd, 4th and 7th respondents. DATED AND DELIVERED AT NAKURU THIS 15TH DAY OF MAY, 2026.J. MATIVO...................................JUDGE OF APPEALMURUNGI B. KAIRARIA...................................JUDGE OF APPEALAHMED ISSACK....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar.