[2022] KECA 806 (KLR)
The Court found that the applicant had satisfied both limbs required for the grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules: (1) the intended appeal is arguable, and (2) the appeal would be rendered nugatory if stay is not granted. The Court therefore allowed the application for stay in...
Source-derived case information.
- Citation
- [2022] KECA 806 (KLR)
- Parties
- Applicant: Mohammed Suby Gedi; Respondent: Nicholas Waititu Njau; Respondent: Independent Electoral and Boundaries Commission; Respondent: Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E264 of 2022
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- M Ngugi, LK Kimaru, JM Mativo
- Legal Topics
- Stay of Execution, Arguable Appeal, Nugatory Appeal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Suby Gedi
Applicant
Nicholas Waititu Njau
Respondent
Independent Electoral and Boundaries Commission
Respondent
Attorney General
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal warranting stay of execution.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the applicant had satisfied both limbs required for the grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules: (1) the intended appeal is arguable, and (2) the appeal would be rendered nugatory if stay is not granted. The Court therefore allowed the application for stay in terms of prayer 3 of the application dated 27th July, 2022, with costs to be in the appeal. The reasons for the decision were reserved to be delivered on a later date.
Court Disposition
Application for stay of execution allowed.
Orders
- Application dated 27th July, 2022 allowed in terms of prayer 3.
- Costs of the application to be in the appeal.
Full Case Text
Judgment text and source record
32 paragraphs
Gedi v Njau & 2 others; United States of America Embassy in Kenya & 3 others (Interested Parties) (Civil Application E264 of 2022) [2022] KECA 806 (KLR) (29 July 2022) (Ruling)
Neutral citation: [2022] KECA 806 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E264 of 2022
M Ngugi, LK Kimaru & JM Mativo, JJA
July 29, 2022
Between
Mohammed Suby Gedi
Applicant
and
Nicholas Waititu Njau
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Attorney General
3rd Respondent
and
United States of America Embassy in Kenya
Interested Party
Principal Secretary State Department of Immigration
Interested Party
Director of Criminal Investigation
Interested Party
Ethic and Anticorruption Commission
Interested Party
(Being an application for stay of execution of the judgment of the High Court of Kenya at Garissa, (Ali-Aroni J.) dated 21st July, 2022 pending the hearing and determination of the intended appeal in Constitutional Petition No. 10B of 2022 Constitutional Petition 10B of 2022 )
Ruling
1. We have considered the application brought under Rule 5(2) (b) of the Rules of this Court and the submissions in support by learned Counsel for the appellant, Mr. Githinji Mwangi; the submissions in support by learned Counsel, Mr. Mohad Somane appearing with Mr. Hassan Nur for the 2nd respondent; and submissions in opposition by Ms. Majune, learned Counsel for the 1st respondent. Counsel for the 3rd respondent, Mr. Weche, intimated to the court that the 3rd respondent wished to take a neutral position on the matter.
2. Having considered the rival submissions by the parties, it is our decision that the applicant has satisfied the Court that he has an arguable appeal, and that the appeal will be rendered nugatory if the orders sought are not granted. We accordingly allow the application dated 27th July, 2022 in terms of prayer 3 of the said application. The costs thereof shall be in the appeal.
3. The reasons for this decision shall be given on 5th August, 2022.
DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2022MUMBI NGUGI.....................................JUDGE OF APPEALLUKA KIMARU.....................................JUDGE OF APPEALJ. M. MATIVO.....................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR