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Court of AppealAllowedCivil Appli 18 of 2007 (UR.15/07)· [2007] KECA 168 (KLR)

JACKSON KIPKEMBOI & 7 others v SAMUEL MURIITHI NJOGU & 4 others [2007] KECA 168 (KLR)

Court of Appeal of Kenya
8 February 2007
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
586 words in judgment
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The bottom line

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Kenya's Court of Appeal freed an advocate jailed for contempt, confirming short sentences must be stayed if an appeal would otherwise become pointless.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (O'Kubasu, Githinji and Onyango Otieno, JJA) delivered on 8 February 2007 in a rule 5(2)(b) application brought urgently by eight reverends, the applicants in HCCC No. 1237 of 1999. The application sought stay of, and release of counsel from, committal orders made by Lady Justice Mugo on 6 February 2007 committing Advocate Elisha Zebedee Ongoya to 21 days' imprisonment for contempt. The advocate had previously been held in contempt in HCCC No. 1236 of 1999, but the Court of Appeal in Civil Appeal Nai. 311 of 2006 had stayed that order; armed with that stay he appeared before the same judge in HCCC No. 1237 of 1999, and after the matter was partly heard the judge, on her own motion, found him guilty of contempt for failing to purge the earlier contempt. The respondents, through Mr. Albert Khaminwa, did not oppose the application. Applying the two-limb rule 5(2)(b) test, the Court held the intended appeal arguable and found that the 21-day sentence would be fully served before the appeal could be heard, rendering success nugatory. The Court allowed the application, stayed the committal orders and ordered the advocate's immediate release pending the hearing and determination of the intended appeal. No costs order was recorded. The ruling binds the High Court in contempt and committal matters pending appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable because the advocate had appeared under a stay granted by this Court in respect of the earlier contempt, yet was committed anew for failing to purge that earlier contempt.

Reasoning

The Court found it arguable that the judge committed the advocate on his own motion for not purging an earlier contempt notwithstanding that a stay of that earlier order had been granted and the matter was subject of an intended appeal whose outcome could go either way. Both counsel agreed on arguability, and the Court accepted that view.

p. 2
02

Nugatory value of the appeal

Holding

A 21-day custodial sentence would be fully served before the appeal could be heard, rendering any success nugatory.

Reasoning

Because the sentence was short (21 days), the appeal could not be heard before the sentence was exhausted. Releasing the applicant pending appeal preserved the utility of the intended appeal; the Court therefore allowed the application and ordered release.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that its success would be rendered nugatory if the order is not granted.
  • Where the applicant will have served a short custodial sentence before an intended appeal can be heard, the appeal would be rendered nugatory and stay/release will be granted.

Court orders

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  1. 1.Elisha Zebedee Ongoya to be released from prison forthwith pending the hearing and determination of the intended appeal
  2. 2.Stay of the orders of Hon. Lady Justice Mugo made on 6th February 2007 committing Mr. Elisha Zebedee Ongoya for contempt

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Civil Appeal Nai. 311 of 2006
On appeal from
High Court of Kenya
H.C.C.C. No. 1237 of 1999
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, "JACKSON KIPKEMBOI & 7 others v SAMUEL MURIITHI NJOGU & 4 others [2007] KECA 168 (KLR)", Case Analysis (2007). Civil Appli 18 of 2007 (UR.15/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/168/eng@2007-02-08

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