Judicial Commission of Inquiry into the Goldenberg Affair & others v Job Kilachi [2003] KECA 155 (KLR)
The bottom line
#The Court of Appeal let the Goldenberg Commission resume work but ordered it to first hear bias complaints against two of its members.
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 motion under rule 5(2)(b) was incompetent because leave to appeal or a certificate was required before lodging a notice of appeal
- 2.Whether an appeal lies to the Court of Appeal from an ex parte order granting leave to apply for a prerogative order, or whether the only remedy was to return to the judge who made the order
- 3.Whether the applicants' intended appeal was arguable
- 4.Whether the intended appeal would be rendered nugatory unless the orders of Mbito, J were stayed
- 5.What substantive orders should be made to regulate both the Commission's operations and the proceedings in the High Court
Key legal issues
#Whether leave to appeal is a condition precedent to filing a notice of appeal under rule 74(4)
It is not. A notice of appeal may be filed before leave or a certificate is obtained; lodging the notice is the only condition precedent to the Court's discretion under rule 5(2)(b).
Rule 74(4) expressly provides that where an appeal lies only with leave or on a certificate, it is not necessary to obtain the leave or certificate before lodging the notice of appeal. Counsel could point to no contrary authority, 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 competent.
Whether an appeal lies from an ex parte order granting leave to apply for a prerogative order, or whether the party must first return to the judge who made the order
An appeal lies as of right under section 8(5) of the Law Reform Act; returning to the judge to set aside the order is one option but the right to appeal cannot be taken away, and in the circumstances of this case appealing was the more appropriate course.
Order 53 rules 1 and 2 uniquely require the application for leave to apply for prerogative orders to be made ex parte to a judge in chambers. Sir Donaldson MR's remarks in Ex parte Harbage concerned Anton Piller orders, which are made ex parte only because of urgency, not because the rules require it - a distinction the English court and a Kenyan first-instance decision had overlooked. Section 8(5) speaks of an appeal from "an order", unqualified. The applicants cannot be punished for exercising the option to appeal.
The test for stay of execution, injunction or stay of further proceedings under rule 5(2)
The applicant must satisfy both limbs: an arguable appeal, and that the appeal would be rendered nugatory unless the stay is granted. No third requirement of irreparable loss exists. One arguable point suffices, and nugatory-ness is a question of fact.
The two-limb test is settled. Dr Khaminwa's suggested third requirement of irreparable loss or damage was rejected. The bias complaint, even if the only point, was arguable and worth investigating. The Commission's operations had been wholly grounded, the matter attracted considerable public interest, and even voluntary recusal was impossible while the stay stood, so success on appeal would be rendered nugatory without an immediate stay.
Status of judicial commissions of inquiry
Obiter: a commission of inquiry is a tribunal inferior to the High Court, amenable to the High Court's judicial review jurisdiction and hence to the Court of Appeal on appeal, and entitled to directions from both courts.
This was common ground between the parties. The court used it to justify directing the Commission to resume its sittings and to accord the Respondent an opportunity to be heard on his bias complaints, a chance he had never had, before the Commission rules on them.
Legal principles established
#- Leave to appeal or a certificate under rule 74(4) of the Court of Appeal Rules need not be obtained before filing a notice of appeal; lodging the notice is the only condition precedent to invoking rule 5(2)(b).
- Under section 8(5) of the Law Reform Act there is a statutory right of appeal to the Court of Appeal from any order made by the High Court under Order 53 of the Civil Procedure Rules, including an ex parte order granting or refusing leave to apply for a prerogative order; no leave to appeal is required.
- A party seeking a stay of execution, an injunction or a stay of further proceedings under rule 5(2) must satisfy the court both that the appeal is arguable and that, if successful, it would be rendered nugatory unless the stay is granted.
- One arguable point suffices to sustain a rule 5(2) application; there need not be a chain of arguable points.
- Whether an appeal will be rendered nugatory is a question of fact to be considered in the circumstances of each particular case.
Court orders
#- 1.Refusal to stay the order of Mbito, J granting the Respondent leave to apply for an order of prohibition
- 2.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
- 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 must 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
- On appeal from
- High Court of Kenya
- High Court Miscellaneous Civil Application No. 304 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (cap 9 sub leg), predicated on the statutory 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 were prima facie serious and the grant of leave was proper
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.
We are satisfied that the learned Judge was right in granting leave to the Respondent to apply for an order of prohibition. The complaints raised by the Respondent against some members of the Commission, are prima facie, serious and we see no reason to stay the order granting leave to apply.
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, i.e. the 1st Applicant.
On costs, we order that the same shall abide the outcome of the intended appeal.
That his appeal or intended appeal is an arguable and not a frivolous one; and 2. That unless the Court grants the stay of execution, the injunction or the stay of a further proceedings the appeal or the intended appeal, were it to be successful after hearing, that success would have been rendered nugatory.
as we have said before 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.
Issues in the judgment
#The coram or bench listing is not reproduced in the judgment text supplied; the judges who composed the panel cannot be identified from the document and none are separately named as authors (the references to 'Mr. Justice Bosire, JA' and 'Ole Keiwua J' are to a party to the motion and a cited first-instance judge respectively, not to the bench).
The date of the ruling and the case/applicant number of the motion are not stated; only the date of lodgment of the motion (31st March 2003) and the date of the orders under challenge (28th March 2003) appear.
The text contains internal typographical errors in party/authority names (e.g. 'Waweru Gantonye' vs 'Waweru Gatonye'; 'ex parte Urgate Pinochet'; 'Levi' rendered 'leve'), which should not be relied on as accurate renderings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Commission of Inquiry into the Goldenberg Affair & others v Job Kilachi [2003] KECA 155 (KLR)", Case Analysis (2003). Notice of Motion dated and lodged 31st March 2003 (rule 5(2)(b), Court of Appeal Rules) - case number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/155/eng@2003-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.