Moijo Matayia Ole Keiwua v Chief Justice of Kenya & 6 others [2006] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal paused a judge's removal case, ruling that one strong legal argument is enough to justify freezing proceedings.
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 intended appeal against the High Court ruling of 14th June 2005 raises arguable points, that is, is not frivolous.
- 2.Whether, unless a stay is granted, the intended appeal, if successful, would be rendered nugatory.
- 3.Whether non-parties who were neither named in nor served with a judicial review motion under Order 53 of the Civil Procedure Rules may, without leave of the court, file affidavits in response to it - the principal arguable point, arising on the interpretation of Order 53 rules 3, 4, 5 and 6.
Key legal issues
#What must an applicant demonstrate to obtain a stay of proceedings pending an intended appeal under rule 5(2)(b) of the Court of Appeal Rules?
The applicant must show, first, that the appeal or intended appeal raises arguable points (is not frivolous) and, secondly, that unless a stay or injunction is granted the appeal, if successful, will be rendered nugatory. Both limbs were satisfied on these facts.
The court restated the twin criteria for a rule 5(2)(b) application, citing Bob Morgan Systems Ltd v Jones. On arguability, it identified a contestable question on the interpretation of Order 53 rules 3, 4, 5 and 6 and observed that an applicant need show only one arguable point. On the nugatory limb, it weighed the disciplinary proceedings against a Judge of Appeal and the impossibility of fathoming, at that stage, how the impugned ruling would affect the pending application, concluding both duties were discharged.
Whether non-parties who were neither named in nor served with a judicial review motion may, without leave of the court, file affidavits in response to it under Order 53 of the Civil Procedure Rules.
The court found the point arguable - sufficient for the first rule 5(2)(b) limb - without deciding the substantive question definitively. Order 53 rule 6 permits a proper person to be heard despite non-service, but the High Court had noted that non-party affidavits require leave, and in Jasbir Singh Rai documents filed without leave were expunged.
Stephen and Sylvester Ntutu were neither parties nor served, yet filed affidavits expressed as 'Replying Affidavits'. The court noted that Order 53 rules 3(4) and 6 allow non-parties to take part in judicial review proceedings and file affidavits, apparently with leave of court, and that under rule 6 a proper person may be heard despite non-service. In Jasbir Singh Rai, a five-judge bench expunged an affidavit and notice of appointment filed without leave. The court held the point arguable but did not decide it definitively.
Whether the intended appeal would be rendered nugatory absent a stay, given that the applicant faces removal proceedings before a tribunal established under section 62 of the Constitution.
Yes. The applicant, a Judge of Appeal, faces a disciplinary tribunal; an adverse finding would remove him from office. The extent to which the High Court's ruling would affect his pending application could not be fathomed at that stage, so the appeal would be rendered nugatory without a stay.
The applicant was a respondent before a tribunal established under section 62 of the Constitution, and alleged the proceedings were unconstitutional, vexatious and outside its mandate. A finding against him would lead to his removal as a Judge of Appeal. Since the extent to which the High Court's ruling would adversely affect his pending application could not be fathomed, the court concluded that without a stay the intended appeal would be rendered nugatory, and granted the stay conditioned on filing the appeal within 30 days given the long delay.
Legal principles established
#- An applicant for a stay under rule 5(2)(b) of the Court of Appeal Rules bears the duty of showing, first, that the appeal or intended appeal raises arguable points (is not frivolous) and, secondly, that unless a stay or injunction is granted the appeal, if successful, will be rendered nugatory.
- It is enough for a rule 5(2)(b) applicant to demonstrate at least one arguable point.
- A stay granted under rule 5(2)(b) may be made conditional on the appeal being filed within a stated period, lapsing automatically if the condition is not met, and otherwise remaining in force until the appeal is determined.
Court orders
#- 1.Prayers (2), (3) and (4) of the motion dated 14th July 2005 granted, including a stay of further proceedings in High Court Miscellaneous Civil Application No. 1298 of 2004 pending the hearing and final determination of the intended appeal.
- 2.The applicant to lodge his appeal within 30 days of the ruling, failing which the order will automatically lapse.
- 3.If the appeal is lodged within the time allowed, the orders of stay to remain in force until determination of that appeal.
- 4.Costs of the application to be in the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. C. No. 1298 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
In an application under rule 5 (2) (b) of the Rules, an applicant has the duty of showing, firstly, that his appeal or intended appeal raises arguable points, or put differently, that it is not frivolous. Secondly, that unless he is granted a stay or injunction, as the case may be, his appeal or intended appeal if successful, will be rendered nugatory.
As the applicant is only required to show at least one arguable point we are satisfied that the applicant has satisfied the first duty.
It is arguable whether without the leave of the court they would file affidavits whether on their own, or through counsel, in response to the motion, as happened in this matter.
In the result we think that unless we grant him the stay he seeks his intended appeal will be rendered nugatory.
We note in passing that there has been a long lapse in time since the aforesaid ruling was delivered, and yet to date no appeal has been filed. Bearing that in mind, we will grant prayers (2), (3) and (4) of the motion dated 14th July, 2005.
The applicant to lodge his appeal within 30 days of this ruling failing which this order will automatically lapse. However, if he lodges his appeal within the time allowed, the orders of stay to remain in force until determination of that appeal.
Costs of this application shall be in the intended appeal.
Issues in the judgment
#The applicant's name appears in two forms: the caption reads 'MATAYIA OLE KEIWUA' while the body of the ruling uses 'Moijo Matayia Ole Keiwua'.
The two non-party deponents are named inconsistently: their affidavits are introduced as sworn by 'Stephen Kanyinke Ole Ntutu and Sylvester Katilai Ole Ntutu', but counsel's submissions later refer to 'affidavits filed by Kunini Ole Ntutu and Kitilai Ole Ntutu', conflating them with Livingstone Kunini Ole Ntutu, the plaintiff in Nairobi High Court Civil Case No. 1565 of 2000.
The operative grant is expressed as 'prayers (2), (3) and (4)' of the motion dated 14th July 2005, but the text of those prayers is not set out in the ruling; only the general relief sought (a stay of further proceedings in H.C. Misc. Civil Application No. 1298 of 2004) is described earlier in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moijo Matayia Ole Keiwua v Chief Justice of Kenya & 6 others [2006] KECA 47 (KLR)", Case Analysis (2006). Civ Appli 202 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/47/eng@2006-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.