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Court of AppealPartially AllowedCivil Application No. 66 of 2009 (UR 39/2009)· [2009] KECA 336 (KLR)

GIBSON NGIGI & another v TURF DEVELOPMENT [2009] KECA 336 (KLR)

Court of Appeal of Kenya
8 May 2009
Philip Kiptoo TunoiP.K. TunoiSBS.E.O. BosireEOE.O. O'Kubasu
1,345 words in judgment
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The bottom line

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Kenya's Court of Appeal halted a 30-day civil jail sentence because the two men were arguably never properly named in the underlying contempt order.

What this practically means

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Executive summary

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The applicants, Gibson Ngigi and Issac Makau, sought a stay of execution of committal orders made by Sergon, J. on 26th February 2009 in H.C.C.C. 485 of 2000, under which they were convicted of contempt and sentenced to 30 days in civil jail. The contempt related to an earlier order of Khaminwa, J. requiring the Officer Commanding Changamwe Police Station to provide security during a demolition exercise ordered in favour of the respondent, Turf Development. Counsel for the applicants argued they were civil servants and strangers to the suit; that the 1st applicant was not the Officer Commanding Station at the material time; and that the 2nd applicant, the area Chief, was not cited in the underlying order. Applying the settled twin principles under rule 5(2)(b) of the Court of Appeal Rules - arguability and nugatory effect - the Court of Appeal (Tunoi, Bosire and O'Kubasu, JJA) held that it was arguable whether the committal orders were directed at the applicants, a single arguable point sufficing, and that a refusal of stay would render any success in the intended appeal of no consequence because the applicants would already have served their sentences. The court allowed the application and stayed the orders of 26th February 2009 until the filing and final determination of the intended appeal, with costs of the motion in the appeal. This ruling binds subordinate courts and the High Court on the rule 5(2)(b) twin principles.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, since it could fairly be argued that the committal orders were not directed to the applicants, who were neither parties to the suit nor the officers named in the underlying order

Reasoning

The 1st applicant was not the Officer Commanding Changamwe Police Station named in Khaminwa, J.'s order, and the 2nd applicant, the area Chief, was not cited in that order at all. The court stressed it was not deciding the merits, but one arguable point suffices and arguability does not import prospects of success.

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02

Nugatory value of the appeal

Holding

The appeal would be rendered nugatory because the applicants would have served their 30-day civil jail sentence before the intended appeal could be heard, making any success of no consequence

Reasoning

The committal order was for 30 days in civil jail. Refusing a stay would mean the applicants completed their jail terms before the appeal was determined, so success in the appeal would be academic and the loss irreversible. This satisfied the second twin principle for relief under rule 5(2)(b).

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Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that, unless a stay is granted, it would be rendered nugatory
  • A single arguable point suffices to establish that an appeal is arguable; arguability does not mean the appeal will succeed

Court orders

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  1. 1.Stay of the orders made by Sergon, J. on 26th February 2009 until the filing and final determination of the intended appeal
  2. 2.Costs of the motion to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder L, Rule 1

Cases cited (3)

  • GITHUNGURI V. JIMBA CREDIT CORPORATION LTD. (No. 2)
    [1988] KLR 838
  • J.K. INDUSTRIES LTD. V. KENYA COMMERCIAL BANK LTD.
    (1982-88) 1 KAR 1088
  • RELIANCE BANK (IN LIQUIDATION) V. NORLAKE INVESTMENTS LIMITED
    Civil Application No. 98 of 2002 (unreported)
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. 485 of 2000
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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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "GIBSON NGIGI & another v TURF DEVELOPMENT [2009] KECA 336 (KLR)", Case Analysis (2009). Civil Application No. 66 of 2009 (UR 39/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/336/eng@2009-05-08

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