Jackson Kipkemboi Kosgey & 1 other v Rev. Bishop Samuel Muriithi Njogu & 6 others
The bottom line
#Kenya's Court of Appeal refused to pause a High Court order because the applicants couldn't show any harm that couldn't later be compensated.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court found the intended appeal arguable: the claim that the consent affected the applicants' rights without their participation was not insubstantial, and even a solitary sufficiently weighty ground avails an applicant.
The applicants contended that a consent made between some parties which binds other parties to the suit is a nullity; that security matters were justiciable; that the consent was an impeachable contract; and that the adoption order was made irregularly without any prayer. The court held these were not idle propositions and could not say the grounds were frivolous.
Whether the intended appeal would be rendered nugatory absent stay
The court held the nugatory limb failed: the consequences of the superior court's orders were not irreversible, and what would be irreversible was loss of life and lost peace.
The substantive petition and chamber summons for conservatory orders remained pending and unprosecuted before the High Court, so the impugned order was interlocutory. The impugned order addressed violence, which was undeniable on the record; any damage flowing from it could be compensated, whereas loss of life and peace could not. The court therefore declined to stay the order.
Whether the court could disturb Nyamu J's discretionary decision to adopt the consent letter
The court declined to interfere with the exercise of discretion by the superior court, noting that such challenges rarely succeed absent misdirection.
The intended appeal was essentially a challenge to the exercise of judicial discretion. While such a challenge can succeed where the judge misdirected himself or reached a wrong conclusion, the court was not persuaded on the material before it that interference was warranted at this interlocutory stage, particularly given the pending substantive petition.
Legal principles established
#- On an application under rule 5(2)(b) the applicant must satisfy the twin principles: that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless interim relief is granted
- The rule 5(2)(b) principles are applied flexibly against the facts of each case, and do not oust the court's power to make consent orders or orders necessary for the ends of justice
- An appellate challenge to the exercise of judicial discretion succeeds only where the court misdirected itself, acted on wrong matters, or failed to consider relevant matters and thereby reached a wrong conclusion
Court orders
#- 1.The application for stay of execution be and is hereby dismissed
- 2.The costs of the application shall abide the result of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 681 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kipkemboi Kosgey & 1 other v Rev. Bishop Samuel Muriithi Njogu & 6 others", Case Analysis (2008). Civil Appli No. 145 of 2007 (UR 95/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/305/eng@2008-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.