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Court of AppealDismissedCivil Application NAI 166 of 2005 (100/2005 UR)· [2005] KECA 94 (KLR)

County Council of Narok v Palyasoi Farmers Co-operative Society & 6 others [2005] KECA 94 (KLR)

Court of Appeal of Kenya
14 October 2005
2,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause contempt proceedings against Narok County Council, ruling the Council had to explain its disobedience to the judge first.

What this practically means

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Executive summary

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The County Council of Narok applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of all further proceedings in Nairobi High Court Civil Case No. 664 of 2004, including the orders of 14th June 2005 by Ojwang, J directing that the plaintiffs' notice of motion dated 10th June 2005 (invoking the court's contempt jurisdiction) be heard before the Council's preliminary objection on jurisdiction. The Council's officers stood alleged to be in contempt of an ex parte injunction issued by Ransley, J on 2nd June 2005 restraining interference with the respondents' properties in Narok. The Council argued that the jurisdictional question ought to have been determined before the contempt proceedings, and Mr Macharia cited authorities in support; Mr Katwa opposed, contending that the preliminary objection had not yet been argued and that the Council was acting in anticipation of an adverse ruling, fearing committal of its officers to civil jail. The Court, in a unanimous judgment (Omolo, O'Kubasu and Deverell, JJ.A), dismissed the application and gave these reasons. It held that although jurisdiction is crucial and there may be merit in hearing it first, each case turns on its own circumstances. No committal order had been made; the contempt hearing would give the Council a right to be heard, and the dignity and authority of the court required that its orders be obeyed even if challenged. Relying on the Goldenberg Commission v Kilach and Silverstein v Chesoni decisions, the Court held that a party should first return to the judge who made the ex parte order to explain or purge the contempt, and that refusal of the stay would not render the intended appeal nugatory since any unnecessary hearing could be remedied by costs. The application was accordingly dismissed.

Key legal issues

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01

Whether the intended appeal would be rendered nugatory if the stay of proceedings was refused

Holding

It would not. If the High Court proceedings were heard and determined and the appeal to the Court of Appeal later succeeded, the appeal would not be worthless; appropriate costs could compensate for any unnecessary hearing in the superior court.

Reasoning

The Court adopted the reasoning in Silverstein v Chesoni and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd: in a stay-of-proceedings application the appeal whose success must be protected is the one already filed in the Court of Appeal, not the appeal pending in the High Court. If the High Court heard the suit and the contempt application and the applicant ultimately succeeded on appeal, the High Court proceedings would simply have been unnecessary, a matter curable by costs. The Court expressly declined to lay down a principle that a stay of proceedings will never be granted, since that would contradict rule 5(2)(b); each case depends on its own facts.

p. 5
02

Whether the applicant, faced with a contempt application and an unargued preliminary objection on jurisdiction, should have approached the Court of Appeal for a stay

Holding

It should not have. The proper course was to return to the learned Judge of the superior court and explain the apparent disobedience of the order or purge the contempt.

Reasoning

The Court noted that no committal order had actually been issued; the contempt hearing was intended to give the applicant the right to be heard and to explain the failure to comply. What was in question was the dignity and authority of the court, and it is trite law that court orders must be obeyed even if they are to be challenged thereafter. Relying on the Goldenberg Commission v Kilach decision, the Court held that a party should not go to the Court of Appeal before going to the judge who made the ex parte order to seek its variation. After an acceptable explanation, committal to civil jail might not arise at all, and the intended appeal might even be abandoned.

p. 4
03

Whether the jurisdictional question had to be decided before the contempt application

Holding

Although jurisdiction is crucial to any subsequent orders, each case must be considered on its own peculiar circumstances; the Judge's direction to hear the contempt application first was not disturbed.

Reasoning

Mr Macharia submitted that jurisdiction should be determined before any other matter. The Court accepted that there may be merit in that submission but declined to treat it as an invariable rule. The circumstances here were that orders had been made against the applicant and it had failed to comply, whether deliberately or through inadvertence. The Judge's case-management direction that the contempt application be heard before the preliminary objection was not shown to warrant a stay of the entire proceedings. Any dissatisfaction with a decision on the contempt hearing could be raised on the intended appeal or a fresh application.

p. 4

Legal principles established

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  • A party seeking a stay of execution, an injunction or a stay of proceedings under rule 5(2)(b) must satisfy the Court both that the appeal or intended appeal is arguable and that it would be rendered nugatory if the stay is not granted
  • On the nugatory limb in a stay-of-proceedings application, the relevant appeal is the one already filed in the Court of Appeal, not the appeal pending in the High Court; costs can usually compensate for unnecessary hearings in the superior court
  • A party should not bypass the judge who made an ex parte order by going straight to the Court of Appeal; a party allegedly in contempt must first return to that judge to explain or purge the contempt, since court orders must be obeyed even if they are to be challenged thereafter
  • Whether the issue of jurisdiction should be determined before any other matter is a question of each case's peculiar circumstances; there is no invariable rule that a jurisdictional preliminary objection must precede contempt proceedings

Court orders

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  1. 1.The applicant's notice of motion dated 17th June 2005 seeking a stay of proceedings in Nairobi High Court Civil Case No. 664 of 2004 and the orders of 14th June 2005 was dismissed
  2. 2.Reasons for the dismissal of the application, previously made in Kisumu on 22nd June 2005, were given

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure Act (Cap. 21)Section 3A
  • Civil Procedure RulesOrder XXXIX Rules 2(1) and (2), 3 and 9
  • Constitution of KenyaSections 70 and 75
  • Registered Land Act (Cap. 300)Sections 27 and 28

Cases cited (3)

  • Judicial Commission of Inquiry into the Goldenberg Affairs & 3 Others v. Kilach
    [2003] KLR 249
  • Silverstein v. Chesoni
    [2002] 1 KLR 867
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another
    Civil Application No. NAI 50 of 2001 (29/2001 UR)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 664 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "County Council of Narok v Palyasoi Farmers Co-operative Society & 6 others [2005] KECA 94 (KLR)", Case Analysis (2005). Civil Application NAI 166 of 2005 (100/2005 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/94/eng@2005-10-14

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