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Court of AppealAllowedCivil Application No. 22 of 2007 (UR. 18/07)· [2007] KECA 164 (KLR)

MICHAEL KARIUKI NJOROGE & 2 others v WAIRIMU KINYANJUI [2007] KECA 164 (KLR)

Court of Appeal of Kenya
15 February 2007
ROR.S.C. OmoloEOE.O. O'KubasuPWP.N. Waki
407 words in judgment
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The bottom line

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Kenya's Court of Appeal freed three people jailed for contempt and halted an exhumation, ruling their planned appeal was strong enough to pause enforcement.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi in a certificate-of-urgency motion brought by three applicants - Michael Kariuki Njoroge, Daniel Njoroge Kinyanjui and Joyce Wangui Ngige - following their committal to prison for six months for contempt by Angawa, J. in Nairobi H.C.C.C No. 96 of 2007, and an ancillary order by the same judge for the exhumation of the body of the late Charles Kinyanjui Njoroge buried at Langata Cemetery. The applicants sought two stays pending an intended appeal against those orders: a stay of the committal order and a stay of the exhumation order. After hearing both sides, the court was satisfied that the intended appeal was arguable. Counsel for the respondent, Mr. Kimathi, informed the court that there was no real objection to the applicants' release provided the body of the deceased was exhumed and returned to the mortuary; counsel for the applicants indicated the exhumation was already being executed, though this could not be verified. The court granted a stay of the committal order, effecting the applicants' immediate release, and further stayed the exhumation if it had not been carried out by the time the order was extracted and served on those charged with the exhumation, including the OCPD, Langata Police Division. Costs were reserved to the intended appeal. The ruling does not disturb the underlying decision; it preserves the position pending the appeal.

Key legal issues

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Whether stay of execution should issue pending an intended appeal against committal for contempt and an order for exhumation

Holding

The court found the intended appeal arguable and, noting counsel for the respondent raised no real objection to release provided the body was exhumed, granted a stay of the committal order effecting the applicants' immediate release and stayed the exhumation if not yet carried out.

Reasoning

The court applied the settled test that an applicant for stay pending appeal must demonstrate an arguable appeal. Having heard both sides, the court was satisfied the intended appeal was arguable. Counsel for the respondent conceded there was no real objection to the applicants' release provided the exhumation proceeded, but the court nonetheless stayed the exhumation if it had not yet been executed upon service of the order, and reserved costs to the intended appeal.

p. 1

Legal principles established

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  • An arguable intended appeal, coupled with the respondent's lack of real objection, justifies a stay of execution of committal and exhumation orders pending appeal.

Court orders

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  1. 1.An order of stay of execution of the order committing the three applicants to prison, effecting their release from prison forthwith
  2. 2.A stay of the exhumation of the deceased's body if not already exhumed by the time the order is extracted and served on the persons charged with the exhumation, including the OCPD, Langata Police Division
  3. 3.Costs shall be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
Nairobi H.C.C.C No. 96 of 2007
Jurisdiction invoked
Rule 18 of the Court of Appeal Rules (UR. 18/07) - application for stay of execution pending intended appeal

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, "MICHAEL KARIUKI NJOROGE & 2 others v WAIRIMU KINYANJUI [2007] KECA 164 (KLR)", Case Analysis (2007). Civil Application No. 22 of 2007 (UR. 18/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/164/eng@2007-02-15

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