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Court of AppealAllowedCivil Appeal 156 of 2005 (UR 95-2005)· [2005] KECA 25 (KLR)

Rustam Hira v Charles Mbagaya Amira & another [2005] KECA 25 (KLR)

Court of Appeal of Kenya
28 June 2005
402 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a lawyer's jailing for contempt, ruling that imprisonment before his appeal is heard would make that appeal pointless.

What this practically means

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Executive summary

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This was an interlocutory application in an intended appeal from a ruling of the High Court at Nairobi (Ojwang, J) dated 3rd June 2005 in H.C.C.C. No. 1169 of 1998. The applicant, Rustam Hira, a senior advocate, sought a stay of contempt of court orders made by Ojwang, J pending the filing, hearing and determination of his intended appeal. The Court noted the peculiarity of the application: the applicant already had a stay granted by Ibrahim, J of the High Court, but Ojwang, J, whose order had been stayed, did not accept that another Judge of concurrent jurisdiction should have stayed his order. The Court accepted the applicant's submission that the Ibrahim, J stay would only last until the hearing and determination of a constitutional reference the applicant had made in the superior court, and that the reference might be concluded long before the appeal was filed and heard. That would expose the applicant to the risk of committal to civil jail, whether upon an adverse outcome in the reference or upon appearing before Ojwang, J before the appeal was heard. Finding the intended appeal clearly arguable and holding that committal to civil jail would render the intended appeal nugatory, the Court allowed the motion and stayed the contempt orders pending the appeal. Costs of the day were ordered to be in the intended appeal.

Key legal issues

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01

Stay of contempt orders pending appeal

Holding

The Court allowed the application, staying the contempt orders made by Ojwang, J until the intended appeal is determined.

Reasoning

The applicant already held a stay from Ibrahim, J, but the Court was concerned that Ojwang, J, whose order was stayed, did not accept that a Judge of concurrent jurisdiction should have stayed his order. The Court assessed that the applicant risked committal to civil jail if the constitutional reference or the ruling of Ojwang, J was enforced before the appeal was heard. Since the intended appeal was arguable and committal would render it nugatory, the stay was warranted.

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02

Scope and duration of the existing High Court stay

Holding

The Court held that the stay granted by Ibrahim, J would only last until the hearing and determination of the constitutional reference made in the superior court, leaving the applicant exposed.

Reasoning

The Court reasoned that the timing of the constitutional reference relative to the intended appeal was uncertain; the reference could be heard and completed long before the appeal was filed and heard. If the reference went against the applicant, or if he appeared before Ojwang, J before the appeal was heard, he risked imprisonment, since Ojwang, J did not accept the orders made by Ibrahim, J. This lacuna justified a further stay by the Court of Appeal.

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Legal principles established

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  • A stay pending appeal will be granted where the intended appeal is arguable and the execution of the orders below, particularly committal to civil jail, would render the appeal nugatory.

Court orders

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  1. 1.Stay of the orders of contempt of court made by Ojwang, J pending the filing, hearing and determination of the applicant's appeal
  2. 2.Costs of the day's application to be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1169 of 1998
Jurisdiction invoked
Inherent appellate jurisdiction to grant stay pending appeal (application in an intended appeal under the Court of Appeal's stay power; no specific provision quoted in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rustam Hira v Charles Mbagaya Amira & another [2005] KECA 25 (KLR)", Case Analysis (2005). Civil Appeal 156 of 2005 (UR 95-2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/25/eng@2005-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.