REV. JACKSON KIPKEMBOI KOSKEY & 7 OTHERS v REV. SAMUEL MURIITHI NJOGU & 4OTHERS [2007] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal paused a one-month jail sentence for contempt, confirming appeals can block punishment that can't be undone.
What this practically means
#Executive summary
#Key legal issues
#What must an applicant demonstrate to obtain a stay of execution, an injunction or a stay of further proceedings under rule 5(2)(b) of the Court of Appeal Rules?
The applicant must satisfy both limbs of the settled test: that the intended appeal is arguable and not frivolous, and that unless the stay is granted the appeal, if successful, will be rendered nugatory. Both limbs were satisfied here.
The court restated the two-limb test from Kiran Chandubhai Patel v Transworld Safaris Ltd and Bob Morgan Systems Ltd v Jones, stressing that the discretion is exercised on evidence and sound legal principles and the duty rests on the applicant to place that evidence before the court. It then applied the test: counsel for the respondents conceded the intended appeal would raise serious issues, so it was not frivolous; and because committal to one month's imprisonment cannot be reversed, refusal of the stay would make even a successful appeal nugatory. Both limbs being met, the discretion was exercised in favour of the applicants.
Was the intended appeal arguable and not frivolous?
Yes. The intended appeal raises arguable questions, including whether the filing of an application for a judge's disqualification can constitute contempt of court and whether the applicants were given an opportunity to show cause before committal; counsel for the respondents conceded the appeal would raise serious issues.
Counsel for the applicants contended it was arguable whether instituting a disqualification application amounts to contempt, and that the applicants were not afforded an opportunity to show cause why they should not be committed, so that proper procedure was not followed. The court found these to be issues the applicants would raise in the intended appeal, and noted that even Dr Khaminwa conceded the appeal would raise serious issues. The intended appeal was therefore not frivolous, satisfying the first limb of the rule 5(2)(b) test.
Does a rule 5(2)(b) application fail because the notice of appeal is alleged to be invalid?
No. Rule 5(2)(b) conditions the power to stay on a notice of appeal lodged in accordance with rule 74; it speaks of 'a notice of appeal', not 'a valid notice of appeal', so the validity objection was rejected.
Dr Khaminwa argued that the notice of appeal was invalid because no leave had been sought from Mugo, J., and that the applicants ought instead to return to the judge and purge the contempt. The court answered the validity argument by reference to the text of rule 5(2)(b), which requires only that a notice of appeal has been lodged in accordance with rule 74. Since the rule does not demand a 'valid' notice of appeal, the submission failed and did not bar the stay.
When does the refusal of a stay render an intended appeal nugatory?
Where the applicant faces imminent committal to a custodial sentence that will be served before the appeal can be heard, refusal of the stay renders even a successful appeal nugatory, since committal to jail cannot be reversed.
The court reasoned that if the stay were refused, the 1st applicant and his advocate would be committed to jail for one month, and by the time the intended appeal was heard and determined they would already have served the sentence, so their success would be nugatory. It found direct support in Stanislus Nyagaka Ondimu v Kalyasoi Farmers Co-operative Society & Others, a similar case in which this Court exercised its discretion in the applicant's favour because the applicant was likely to have served a jail sentence before the appeal came up for hearing.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy the court on two limbs: that the intended appeal is arguable and not frivolous, and that unless a stay is granted the intended appeal, if successful, will be rendered nugatory.
- Rule 5(2)(b) requires only that a notice of appeal has been lodged in accordance with rule 74; it does not require a 'valid' notice of appeal, so an objection that the notice of appeal is invalid does not defeat a rule 5(2)(b) application.
- Where refusal of a stay would result in the applicant serving a custodial sentence before the appeal can be heard, a successful appeal would be rendered nugatory because committal to jail cannot be reversed; this justifies granting a stay.
Court orders
#- 1.Stay of execution of the orders of Mugo, J. made on 8th December 2006 finding Rev. Jackson Kipkemboi Kosgey and Mr. Elisha Zebedee Ongoya, advocate, guilty of contempt of court and committing them to prison for one month, and of the warrants of arrest issued pursuant to those orders, pending the hearing and determination of the intended appeal.
- 2.Stay of proceedings in H.C.C.C. No. 1236 of 2004 pending the hearing and determination of the intended appeal.
- 3.Costs of the application shall 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 (in any civil proceedings where a notice of appeal has been lodged in accordance with rule 74, the Court may order a stay of execution, an injunction or a stay of further proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REV. JACKSON KIPKEMBOI KOSKEY & 7 OTHERS v REV. SAMUEL MURIITHI NJOGU & 4OTHERS [2007] KECA 378 (KLR)", Case Analysis (2007). Civil Application No. 311 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/378/eng@2007-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.