Case Brief
(Mokua Manyara)1
Brief Factual background
The Appellant invoked the intervention of the Supreme Court of Kenya seeking conservatory orders, inter alia, staying the Court of Appeal decision declaring the seat of Governor Meru County vacant upon successful challenge by the Respondents after the 2013 general elections.
Further, the Appellant sought the Supreme Court’s intervention staying the orders allowing the Speaker of Meru County assuming office of governor as the seat had been declared vacant due to discrepancies in the elections and the machineries of IEBC which kick in after elections have been nullified.
Issues for consideration
The issues for determination at the Supreme Court were:
Whether the appeal lodged is in compliance with the Supreme Court’s
jurisdictional mandate;
Whether, if (a) above is fulfilled, the particular appeal merits being admitted to hearing;
Whether, in the event both (a) and (a) above are fulfilled, the Supreme Court should grant interlocutory stay orders on the scheduling of fresh gubernatorial elections, pending the hearing and determination of the appeal; and
Mokua Manyara is an Advocate of the High Court of Kenya, a partner at MNW & Advocates LLP www.mnwlaw.co.ke mokua@mnwlaw.co.ke 0707160191
Whether, in the event both (a) and (b) above are fulfilled, the Supreme Court should order a stay on the process of swearing-in the Speaker of Meru County Assembly as Governor, in an acting capacity.
Determination
The Supreme Court first dealt with the hotly contested issue of jurisdiction as the Defendants argued that the matter in question did not meet the necessary threshold.
First, the SC sought to evaluate if the issues at hand invoked any of the twin parameters to invoke the jurisdiction of the Supreme Court being;
They involved interpretation or application of the constitution; or
Had been certified as being general public importance.
To summarize, the Supreme Court held that it was properly seized of jurisdiction to entertain the Application before it as it heralded controversies that sought deeper interpretation of the Constitution. In the said holding, the SC noted that even in the interpretation of the Elections Act and the regulations thereunder, they must be read in line with Articles 81 and 86 of the Constitution, which brought the issues of contention within the purview of constitutional controversy.
On the issue of whether the Conservatory orders sought, the Supreme Court heralded three cardinal principles to be used before granting Conservatory Orders:
The Appeal or intended Appeal must be arguable and not frivolous; and that
Unless the orders sought are granted, the appeal or intended appeal, were it to be eventually granted, would ne rendered nugatory, and
It is in the public interest that the orders sought be granted.
The apex court further noted that Conservatory Orders are unlike interlocutory orders where the issue of prejudice would apply. Instead, in granting the said orders, the court must bear in mind public interest, constitutional values, the proportional magnitude and the priority levels attributable to the relevant causes.
Indeed, owing to the likelihood of usage of public funds to fund a by- election in Meru County while the dispute in the Supreme Court remained live, the Supreme Court issued the Conservatory orders sought.
Conclusion
The Supreme Court granted the Conservatory Orders sought and stayed orders on the scheduling of fresh gubernatorial elections, pending the hearing and determination of the appeal
Further, the Supreme Court stayed order allowing the process of swearing- in the Speaker of Meru County Assembly as Governor, in an acting capacity.