The Appeal Court has suspended orders that the Presidential Delivery Unit should disclose the amount spent on 'GoK Delivers' advertisements.
The had been issued by High Court judge Chacha Mwita after the Katiba Institute sued the government for advertising its achievements on the delivery portal.
The institute sought information on the advertisements to establish the extent to which they violated electoral laws.
The government appealed the ruling and sought a stay of execution of the orders pending the appeal.
Judge Mwita had ordered a permanent injunction that barred the national government from advertising its achievements and ruled that the use of public resources to launch and maintain the Government Delivery Portal was irregular, illegal and unlawful.
“A declaration is hereby issued that the government's use of delivery portal www.delivery.go.ke is null and void,” he said.
The government, in the appeal, referred to the draft memorandum of appeal in which eight grounds were listed to demonstrate the intended appeal is arguable.
The court noted that the grounds were not frivolous but indeed arguable.
Judges Milton Makhandia, William Ouko and Otieno Odek said they deliberately did not say anything on the lobby group’s argument that there is no valid notice of appeal on the record because they have seen a copy.
But the more fundamental reason for not considering those submissions is that the recourse for any such infraction in the notice of appeal is by applying Rule 84 of the Court of Appeal Rules for the striking out and not through oral submissions.
“Accordingly, we come to the conclusion that the applicants, having satisfied both limbs, are entitled to the protection of the law pending the lodging, hearing and determination of the appeal. In the result, the application succeeds and an order of stay of execution of the judgment and decree of November 8, 2017, granted until the appeal is lodged and heard,” the judges ruled.
They noted the nugatory aspect of the appeal as it was submitted that Katiba Institute had on February 26, 2018, filed an application asking the government to show why contempt proceedings should not be commenced against it.
That application was scheduled for hearing on December 6, last year.
“In the circumstances, the applicant is apprehensive that unless a stay of execution is granted, the respondent will proceed to execute the decree which in turn is likely to culminate in them being held in contempt.
"Should this happen, their intended appeal will be rendered nugatory. Where a person’s personal freedom and liberty is threatened, as here, the court will readily provide temporary protection by granting orders to stay or stop the threats pending the hearing on merit the appeal,” the court ruling reads.
