Judicial Commission of Inquiry into the Goldenberg Affair & 3 others v Job Kilach [2003] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal let the Goldenberg Commission resume sitting while ensuring bias complaints against its members are heard first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was properly lodged without prior leave, i.e. whether leave is a condition precedent to filing a notice of appeal against an ex parte order granting leave to apply for judicial review
- 2.Whether the applicants were obliged to return to Mbito J to have the ex parte order set aside rather than appeal to the Court of Appeal
- 3.Whether the intended appeal is arguable and whether staying Mbito J's orders would render the appeal nugatory
- 4.What orders of stay, if any, should issue pending the intended appeal
Key legal issues
#Competence of the rule 5(2)(b) motion without prior leave to appeal
The motion was competent: rule 74(4) permits filing a notice of appeal before obtaining leave or a certificate, and filing the notice is the only condition precedent to the Court's discretion
The court construed rule 74(4), which governs appeals that lie only with leave or on a certificate of a point of law of general public importance. In either situation the leave or certificate need not be obtained before lodging the notice of appeal. No authority was shown making leave a condition precedent, and such a decision would contradict the plain words of the rule. The applicants filed their notice on 31st March 2003, so the motion was neither incompetent nor premature.
Route for challenging an ex parte order granting leave to apply for judicial review
In Kenya a party may appeal directly to the Court of Appeal against an ex parte order granting leave; the applicants could not be punished for exercising that statutory option
Distinguishing the English case of ex parte Harbage, the court noted that Sir John Donaldson MR's remarks were made about Anton Piller orders, which are made ex parte only for reasons of urgency, whereas under order 53 an application for leave to apply for prerogative orders must be made ex parte. Section 8(5) of the Law Reform Act confers a statutory right of appeal from 'an order' of the High Court, without restricting it to prerogative orders. Given the long-drawn-out dispute, appealing was the more appropriate option.
Requirements for stay under rule 5(2)(b) and whether they were met
Both limbs were satisfied in part: the intended appeal was arguable, and the total grounding of the Commission's operations would render its success nugatory, justifying a stay of the stay of the Commission's sittings
The court reiterated the twin principles for rule 5(2)(b) relief and rejected a suggested third requirement of irreparable loss. The bias complaint against Justice Bosire and Mr Gatonye was held arguable. On nugatory-ness, the Commission could not sit at all, had never been given the chance to deal with the complaints itself, and the matter attracted considerable public interest; leaving the stay intact would render the intended appeal nugatory.
Entitlement of the Commission to deal first with the recusal complaints
The Commission must be given the opportunity to deal with the complaints against its members at its first sitting before the High Court proceeds
It was agreed that a commission of inquiry is a tribunal inferior to the High Court, amenable to judicial review. Since the Commission had never been given a chance formally to deal with the complaints against its members, it should be allowed to do so. Simultaneous proceedings in the High Court and the Commission would be wrong, so the High Court proceedings were stayed pending the Commission's ruling on the complaints.
Legal principles established
#- Under rule 74(4) of the Court of Appeal Rules, where an appeal lies only with leave or on a certificate, it is not necessary to obtain the leave or certificate before lodging a notice of appeal; lodging the notice of appeal is the only condition precedent to the exercise of the Court's discretion under rule 5(2)(b)
- An appeal lies to the Court of Appeal from any order made by the High Court in a judicial review matter, including an ex parte order granting leave, by virtue of section 8(5) of the Law Reform Act, which refers simply to 'an order' without qualification
- An applicant under rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; there is no third requirement of irreparable loss or damage, and even one arguable point suffices
- Whether an appeal would be rendered nugatory is a question of fact, not law, to be considered in the circumstances of each particular case
Court orders
#- 1.Refusal to stay the order of Mbito J granting leave to apply for an order of prohibition
- 2.Stay of Mbito J's orders directing that the grant of leave operate as a stay of the sittings and operations of the Commission
- 3.Direction that the Commission resume its sittings and other operations as soon as is reasonably practicable
- 4.Direction that at its first sitting the Commission accord the respondent the chance to ventilate his complaints against its two members, consider those complaints and give its ruling thereon
- 5.Stay of any further proceedings in the High Court until after the hearing and determination of the respondent's complaints by the Commission
- 6.Costs to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- High Court Miscellaneous Civil Application No. 304 of 2003 (Mbito, J)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; right of appeal under section 8(5) of the Law Reform Act, Cap 26
Relief refused
#Stay of the order granting leave to apply for an order of prohibition
The complaints raised against members of the Commission are prima facie serious and the judge was right in granting leave
Costs
Costs shall abide the outcome of the intended appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we order a stay of Mbito J’s orders directing that the leave granted should act as a stay of the sittings and other operations of the Commission.
The consequence of this order is that the Commission is directed to resume its sittings and other operations as soon as is reasonably practicable.
Accordingly, we order a stay of any further proceedings in the High Court until after the hearing and determination of the Respondent’s complaints by the Commission, ie the 1st applicant.
We are satisfied that the obtaining of leave is not a condition precedent to the filing of a notice of appeal.
even one arguable point is sufficient for the purposes of rule 5(2); there need not be a chain of arguable points to sustain an application
what would render an appeal nugatory is a question of fact, not law and that being so, that issue must be considered in the circumstances of each particular case
Issues in the judgment
#The Court at one point describes the Commission as the '1st respondent' and elsewhere as the '1st applicant'; the parties are also described at the start as 'applicants' while the opening line calls them 'respondents'. The roles are discernible from context (the Commission, Bosire, Gatonye and the Attorney General are the applicants/movants and Job Kilach is the respondent).
The case number of the present application is not expressly stated in the judgment; it is identified only as 'the motion dated and lodged in this Court on 31st day of March, 2003'. The case number recorded here is inferred from context and the respondent's reference to a separate Civil Appeal No 134 of 2002 should not be confused with this application.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karebe Gold Mining Limited & another v Korir & 14 others (Environment and Land Case E009 of 2022) [2025] KEELC 6457 (KLR)[2025] KEELC 6457 (KLR)29 Sept 2025followed
- Ternic Enterprises Limited v Waterfront Outlets Limited [2018] KECA 764 (KLR)[2018] KECA 764 (KLR)16 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Judicial Commission of Inquiry into the Goldenberg Affair & 3 others v Job Kilach [2003] KECA 47 (KLR)", Case Analysis (2003). Civil Application No. Nai. 134 of 2003 (as inferred from motion dated and lodged 31st March 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/47/eng@2003-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.