[2009] KECA 110 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT NAIROBI

Civil Appli 241 of 2009 (UR 170/2009)

JOSEPH SERENGE ………………….…………………… APPLICANT

AND

PONYONCHI KUNYOBO …………………….….. 1ST RESPONDENT

MUNICIPAL COUNCIL OF KAKAMEGA …….... 2ND RESPONDENT

THE CLERK TO THE MUNICIPAL COUNCIL

OF KAKAMEGA ………………………………….. 3RD RESPONDENT

(Application for stay of proceedings and order of the High Court of Kenya at Kakamega pending the lodging, hearing and determination of an intended appeal from the Ruling and Order of the High Court of Kenya, Kakamega (Chitembwe, J) dated 30th July, 2009

In

H.C.C.C. No. 106 of 2009)

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RULING OF THE COURT

Joseph Serenge, the applicant herein, and who was ably represented before us by Dr. Khaminwa, comes before the Court under Rule 5 (2) (b) of the Court of Appeal Rules.

In paragraph two of his notice of motion dated the 6th and lodged in the Court on the 7th August, 2009, the applicant prays to the Court:-

“THAT pending the lodging and determination of the applicant’s intended appeal the ruling and order issued by the Honourable Mr. Justice Said, J. Chitembwe on 30th July, 2009 in HCCC NO 106 of 2009 (Kakamega) be stayed and/or suspended on such terms as this Honourable court may deem just.”

The basis of this prayer is as follows. By a plaint dated and lodged in the court of the Chief Magistrate at Kakamega on 9th July, 2009 one Willington Inganji Khakabo sued Ponyochi Kunyobo, the first respondent herein, and the Clerk, Municipal Council of Kakamega and the claims made against the two were that the first respondent was not entitled to participate in the pending elections of the Kakamega Municipal Council as the first respondent owed the Council some money, that the Town Clerk had invited the 1st respondent to participate in the elections while the first respondent was not qualified to do so. Khakabo accordingly asked the Magistrate for a declaration that the first respondent was not entitled to participate in the elections and that the two defendants in that case be restrained by an order of injunction from allowing the first respondent to participate in the elections. The said elections were to be held on the 10th July, 2009. By an order dated the 9th July, 2009 the Magistrate directed that:-

“--- pending the hearing and determination of this application a temporary injunction be and is hereby issued restraining the 1st defendant from participating or offering himself for election for any post in the mayoral, deputy mayoral and position in any of the committees within the Municipal Council of Kakamega and the 2nd defendant to be temporarily restrained from allowing the 1st defendant into the venue of elections and/or participating in the election scheduled for 10/7/2009 of the Municipal Council of Kakamega.”

We were told that this order was served on the Town Clerk, the 3rd respondent herein, on the day of the election and that the 1st respondent was accordingly removed from the venue of the election. The elections were then held and the applicant, according to his supporting affidavit, was elected as the mayor unopposed and was declared the mayor of the Council, the 2nd respondent herein.

It appears that while all this was going on, another suit was filed in the High Court at Kakamega; the first plaintiff in that suit was the 1st respondent in the motion before us; there were six other plaintiffs and we understand they were all councillors in the 2nd respondent. The parties against whom the High Court suit was brought were the 2nd respondent, the 3rd respondent and the applicant herein who had been elected as Mayor on 10th July, 2009. Accompanying the suit was summons in chambers under Order 39 Rules 1 (2) 2(A) of the Civil Procedure Rules and sections 63 (c) and (e) and 3A of the Civil Procedure Act. The prayers made in the summons were that the applicant was to be restrained from assuming the office of the mayor, that all the three defendants named in the suit were to be restrained by an injunction from holding elections for the Deputy Mayor and Chair of other committees and that the applicant was to be restrained

“--- from assuming office as mayor or in any other manner acting as mayor or in any manner acting as mayor of the 1st, (sic) 2nd and 3rd Defendant be restrained from holding elections, for deputy and chair of various committees.”

This summons was filed on 10th July, 2009 but was amended on 13th July, 2009. It is the summons which Chitambwe, J heard and by his Ruling dated and delivered on 30th July, 2009, the learned Judge made various orders, amongst them being that the election of the applicant as mayor on 10th July, 2009 had not been conducted in accordance with the law, that the applicant was restrained from assuming the office of the mayor and that the Council and its clerk were to hold elections for the mayor, the deputy mayor and the chair of various committees. Those elections were to be held within twenty-one (21) days of the Judge’s orders.

According to the replying affidavit of the 1st respondent, the elections ordered by the Judge were conducted on 12th August, 2009 and that one Vincent Anjeche Nyapola was elected the mayor. Nyapola is not a party to the motion before us and it appears that he has not been served with the notice of appeal.

As the application is under Rule 5 (2) (b) , the applicant was obliged to satisfy the Court on two issues, namely, that his intended appeal is arguable, i.e. that is not frivolous, and secondly that unless we grant the order of stay sought by the applicant, the intended appeal, were it to succeed, would have been rendered nugatory.

On the first point, having heard Dr. Khaminwa on the issue of the Judge’s jurisdiction to grant the orders he did grant despite the existence of the case in the magistrate’s court, we are satisfied that there is an arguable appeal. It is to be remembered that an arguable appeal does not imply or mean that an appeal must or will succeed in the end. It simply means the appeal is one which can be argued.

On the second issue, the elections to the various seats including that of the mayor and other committee chairs have been held. As we have seen they were held on 12th August, 2009. In the present motion, we cannot nullify those elections because we cannot, in the motion, conclusively determine the question of whether the Judge had or had no jurisdiction to make the orders he did make. That determination can only be made in the intended appeal and a hearing under Rule 5 (2) (b) cannot be converted into the hearing of an appeal. To declare the elections a nullity at this stage, as Dr. Khaminwa asked us to do, would be going far beyond the scope of Rule 5 (2) (b). We are not persuaded that we should do so in this motion. As is commonly put in such situations the applicant’s notice of motion has been overtaken by events and there is really nothing for the Court to stay. In the circumstances, we must order that the notice of motion be and is hereby dismissed. The costs of the dismissed motion shall be in the intended appeal. Those shall be the orders of the Court.

Dated and delivered at Nairobi this 23rd day of October, 2009.

R.S.C. OMOLO

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JUDGE OF APPEAL

S.E.O. BOSIRE

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JUDGE OF APPEAL

E.O. OKUBASU

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.