[2021] KECA 221 (KLR)
The Court found that the application for stay of execution had been overtaken by events because the 3rd respondent had already assumed and continued to hold the position of Commissioner of the Judicial Service Commission. As such, the orders sought could no longer serve any practical purpose. The application was...
Source-derived case information.
- Citation
- [2021] KECA 221 (KLR)
- Parties
- Applicant: Attorney General; Respondent: Law Society of Kenya; Respondent: Chief Justice of the Republic of Kenya; Respondent: Mohamed Warsame; Respondent: Judicial Service Commission
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 33 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed as moot
- Judges
- RN Nambuye, W Karanja, HM Okwengu
- Legal Topics
- Stay of Execution, Judicial Service Commission, Constitutional Petitions, Mootness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Attorney General
Applicant
Law Society of Kenya
Respondent
Chief Justice of the Republic of Kenya
Respondent
Mohamed Warsame
Respondent
Judicial Service Commission
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution of the High Court judgment was still tenable given the subsequent events.
- 2 Whether the intended appeal would be rendered nugatory if the stay was not granted.
- 3 Whether the application had been overtaken by events and was therefore moot.
Ratio Decidendi
The Court found that the application for stay of execution had been overtaken by events because the 3rd respondent had already assumed and continued to hold the position of Commissioner of the Judicial Service Commission. As such, the orders sought could no longer serve any practical purpose. The application was therefore moot and could not be granted. The Court dismissed the application with no order as to costs.
Court Disposition
application dismissed as moot
Orders
- The application is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
Attorney General v Law Society of Kenya & 3 others (Civil Application 33 of 2019) [2021] KECA 221 (KLR) (Civ) (5 November 2021) (Ruling)
Neutral citation number: [2021] KECA 221 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application 33 of 2019
RN Nambuye, W Karanja & HM Okwengu, JJA
November 5, 2021
Between
Attorney General
Applicant
and
Law Society of Kenya
1st Respondent
Chief Justice of the Republic of Kenya
2nd Respondent
Mohamed Warsame
3rd Respondent
Judicial Service Commission
4th Respondent
(An Application for stay of execution of the Judgment and Orders of the High Court of Kenya at Nairobi (E. C. Mwita, J.) delivered and dated 18th January, 2019 in Petition No. 307 of 2018)
Ruling
1. This application was filed before this Court on 1st February, 2019 under Certificate of Urgency. The applicant was seeking in the main an order of stay of execution of the judgment and orders of the High Court of Kenya in Nairobi Constitutional Petition No. 307 of 2018 dated 18th January, 2019 pending the hearing and determination of the intended appeal against the said judgment.
2. In the alternative the applicant prayed for an order of injunction preventing the Honourable Justice Mohamed Abdullahi Warsame from either acting as or performing any duty as a Commissioner of the Judicial Service Commission arising from the judgment, decision and the orders of the High Court of Kenya in Nairobi Constitutional Petition No. 307 of 2018 pending the hearing and determination of the application and intended appeal.
3. The application is premised on nine (9) grounds on its face and supported by an affidavit sworn by Njeri Wachira, Deputy Solicitor General in the office of the Attorney General.
4. According to the applicant, the intended appeal raises serious arguable constitutional issues deserving of interpretation and determination by this Court. It was the applicant’s apprehension then that if the orders sought were not granted, the 3rd respondent (Hon. Justice Warsame) would proceed to perform functions of a commissioner of the Judicial Service Commission, and in the event the intended appeal succeeded, such functions would be irreversible. The application was opposed by 1st, 2nd and 4th but there was no response from the 3rd respondent.
5. When the motion came up for hearing before this Court on 3rd April, 2019 the court directed that the application be served on the 3rd respondent as it was evident that he had not been served with the application and the hearing notice for that day. The application was therefore adjourned.
6. It is not clear what happened thereafter, but it is common knowledge that the 3rd respondent took up his position as Commissioner of the Judicial Service Commission, a position he still holds todate. Essentially therefore, this application has been overtaken by events and is, therefore, moot.
7. Accordingly, we dismiss the same with no order as to costs.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2021. R. N. NAMBUYE.....................JUDGE OF APPEALW. KARANJA.....................JUDGE OF APPEALHANNAH OKWENGU.....................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR