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Court of AppealPartially AllowedCivil Application No. 25 of 2007 (20/2007 UR)· [2008] KECA 273 (KLR)

James Mwarari Gatome & 7 others (All T/A Gatome & Associates v Republic [2008] KECA 273 (KLR)

Court of Appeal of Kenya
9 May 2008
SBS. E. O. BosireJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
1,670 words in judgment
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The bottom line

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Kenya's Court of Appeal suspended a surveyor's six-month punishment until his appeal is heard, because letting it expire first would make the appeal pointless.

What this practically means

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Executive summary

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The applicants, a licensed land surveyor (J. M. Gatome) and his seven approved assistants practising as Gatome & Associates, were suspended for six months by the Land Surveyors Board on 14th July 2005 following complaints against two of the assistants. They sought judicial review orders of certiorari and prohibition in the High Court (H.C. Misc. C. No. 1337 of 2005), alleging breach of natural justice. Wendoh J dismissed the application on 18th December 2006 with costs. The applicants filed a Notice of Appeal and moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the High Court orders and of the Board's decision. Applying the two-limb test in Reliance Bank v Norlake Investments, the court found arguable points: the judge had herself held that two complainants, one of whom prosecuted before the Board, had an interest in the proceedings and should not have sat, yet concluded their participation made no difference; and it was arguable that a disciplinary sentence on the first applicant could not properly affect the other seven applicants whose conduct had not been questioned. The nugatory limb was also satisfied because the six-month suspension would expire before the appeal could be heard. The court granted stay of execution of the six months' suspension until the hearing and determination of the intended appeal, with costs of the application to abide its outcome. This is an interlocutory ruling, not a final disposition of the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable on the questions of bias in the Land Surveyors Board and whether the suspension of the licensed surveyor could extend to his approved assistants

Reasoning

The High Court judge had herself found that two complainants, Muriithi Mugo and Mwathane (who acted as prosecutor), had an interest in the disciplinary proceedings and should not have taken part, yet went on to hold their participation made no difference. Whether that conclusion was right was arguable. Also arguable was whether the Board's sentence on the first applicant could properly bind the other seven applicants whose conduct was not before the Board.

p. 3
02

Nugatory value of the appeal

Holding

The appeal would be rendered nugatory if the six-month suspension was served before the appeal was heard, as the suspension period would have expired

Reasoning

The applicants were Land Surveyors earning their living through practice; if the six-month suspension ran its course before the appeal was determined, the appeal would be of academic value only. The respondent's counsel conceded there was an arguable point. The court therefore found the nugatory limb satisfied and granted stay pending the intended appeal.

p. 4

Legal principles established

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  • An application under rule 5(2)(b) of the Court of Appeal Rules succeeds only if the applicant satisfies the court that the appeal is arguable and that, absent the stay or injunction, the appeal would be rendered nugatory

Court orders

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  1. 1.An order of stay of execution of the six months' suspension against the applicants, to remain in force until the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (2)

  • Reliance Bank Limited (In liquidation) v Norlake Investments Limited
    Civil Application No. Nai. 93 of 2002 (unreported)
  • R. v. Rand
    (1966) L.R. 1QB 230
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. C. No. 1337 of 2005
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, "James Mwarari Gatome & 7 others (All T/A Gatome & Associates v Republic [2008] KECA 273 (KLR)", Case Analysis (2008). Civil Application No. 25 of 2007 (20/2007 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/273/eng@2008-05-09

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