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Court of AppealPartially AllowedCivil Application No. 311 of 2006 (UR 174/06)· [2007] KECA 106 (KLR)

1. Rev. Jackson Kipkemboi Koskey 2. Rev. Stephen Maina Mwangi 3. Rev. Josephat Kamau Ng’ang’a 4. Rev. Eliud Karanja Wanyoike 5. Rev. Stephen Kiguru Kamau 6. Rev. Stanley Waweru Kamau 7. Rev. Samuel Wachira 8. Elisha Zebedee Ongoya – Advocate v 1. Rev. Samuel Muriithi Njogu 2. Rev. Joseph Samoei 3. Rev. Samuel Mbithi Kathita 4. Rev. Elijah Cheruiyot 5. Rev. Wildred Nyamu

Court of Appeal of Kenya
23 March 2007
2,254 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a one-month jail sentence for contempt of court, holding the appeal against the committal was arguable and would be pointless if the sentence was served first.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a Notice of Motion brought under rule 5(2)(b) of the Court of Appeal Rules by seven clergy members of the Full Gospel Churches of Kenya and their advocate, seeking stay of execution and stay of proceedings pending an intended appeal against a ruling of Mugo, J. delivered on 8th December 2006 in H.C.C.C. No. 1236 of 2004. The High Court judge had refused to disqualify herself from the church leadership dispute, found Rev. Koskey and Mr. Ongoya guilty of contempt of court for filing the disqualification application, and committed them to prison for one month with warrants of arrest issued. The applicants argued the intended appeal was arguable, that proper procedure was not followed before committal, and that any appeal would be nugatory because the prison sentence would have been served before hearing. The respondents objected that the notice of appeal was invalid for want of leave. The Court applied its settled twin test under rule 5(2)(b) — arguability and nugatory impact — relying on Kiran Chandubhai Patel, Bob Morgan Systems Ltd and Stanislus Nyagaka Ondimu. It rejected the validity objection, holding the rule requires only a notice of appeal lodged under rule 74, not a 'valid' notice. Finding the appeal arguable and success nugatory if the sentence was served, the Court granted the application in terms of prayers 2 and 3, staying the committal orders, warrants and the proceedings below, with costs in the intended appeal.

Key legal issues

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01

Whether the filing of an application for disqualification of a judge, and the arguability of the intended appeal against committal for contempt

Holding

The intended appeal is arguable and not frivolous; even the respondents' counsel conceded it raised serious issues.

Reasoning

Counsel for the applicants argued it was arguable whether filing a disqualification application amounts to contempt, and that the applicants were not given an opportunity to show cause why they should not be committed. Respondents' counsel conceded the intended appeal would raise serious issues, so the arguability threshold under rule 5(2)(b) was met.

p. 4
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

A stay was necessary because the applicants would have served the one-month prison sentence before the appeal was heard, rendering any success nugatory.

Reasoning

The order of committal could not be reversed; if the applicants were jailed for one month, by the time the appeal was heard and even if it succeeded, the success would be of no value since the sentence would have been served. The Court followed its earlier decisions in Stanislus Nyagaka Ondimu and Mwangi Wangondu where imminent custodial sentences justified a stay.

p. 4
03

Effect of an allegedly invalid notice of appeal on a rule 5(2)(b) application

Holding

The rule requires a notice of appeal lodged under rule 74, not a 'valid' notice of appeal; the objection to the notice's validity was rejected.

Reasoning

Dr. Khaminwa argued the notice of appeal was invalid for want of leave from Mugo, J. The Court examined the text of rule 5(2)(b), which speaks of 'a notice of appeal' lodged in accordance with rule 74, and held that the rule does not require a 'valid' notice of appeal. The submission was therefore rejected on the plain wording of the rule.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must show both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • Rule 5(2)(b) requires the lodgement of a notice of appeal in accordance with rule 74, not proof that the notice of appeal is valid; a challenge to the validity of the notice does not defeat a stay application.

Court orders

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  1. 1.Stay of execution of the orders of Mugo, J. of 8th December 2006 finding Rev. Jackson Kipkemboi Koskey and Mr. Elisha Zebedee Ongoya guilty of contempt and committing them to prison for one month, and of the warrants of arrest, pending the hearing and determination of the intended appeal (prayer 2)
  2. 2.Stay of proceedings in H.C.C.C. No. 1236 of 2004 pending the hearing and determination of the intended appeal (prayer 3)
  3. 3.Costs of the application to be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1236 of 2004
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, "1. Rev. Jackson Kipkemboi Koskey 2. Rev. Stephen Maina Mwangi 3. Rev. Josephat Kamau Ng’ang’a 4. Rev. Eliud Karanja Wanyoike 5. Rev. Stephen Kiguru Kamau 6. Rev. Stanley Waweru Kamau 7. Rev. Samuel Wachira 8. Elisha Zebedee Ongoya – Advocate v 1. Rev. Samuel Muriithi Njogu 2. Rev. Joseph Samoei 3. Rev. Samuel Mbithi Kathita 4. Rev. Elijah Cheruiyot 5. Rev. Wildred Nyamu", Case Analysis (2007). Civil Application No. 311 of 2006 (UR 174/06). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/106/eng@2007-03-23

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