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Court of AppealDismissedCivil Application No. NAI. 87 of 2013 (UR.57/2009)· [2013] KECA 453 (KLR)

International Centre For Policy and Conflict v Kamlesh Mansukhlal Damji Pattni & 5 others

Court of Appeal
12 July 2013
2,588 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that winning a stay requires proving both an arguable appeal and nugatory harm—one alone isn't enough.

What this practically means

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Executive summary

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The International Centre for Policy and Conflict (ICPC) moved the Court of Appeal under Rules 1(2) and 5(2)(b) for a stay of execution of the judgment and decree of Mutava J of 20th March 2013 in Judicial Review Misc. Civil Application No. 305 of 2012, by which the High Court granted two orders of prohibition restraining the prosecution of Kamlesh Pattni and Elijah Bii in CMCR.C. No. 518/06, a criminal case arising from the 'Goldenberg' Inquiry ('Bosire' Report). The Chief Magistrate thereafter terminated the criminal proceedings upon service of the decree. ICPC argued, among other grounds, that the learned Judge had considered the merits of the decisions under review rather than their legality, that the judicial review was time-barred, and that rights claims such as trial within a reasonable time belonged in a constitutional petition; it feared the respondents would flee and their sureties would be released. The respondents contended there was nothing to stay, prohibition having operated prospectively, and that the appeal could not be rendered nugatory. The court restated the twin conjunctive principles under Rule 5(2)(b): the intended appeal must be arguable and, if successful, would be rendered nugatory absent stay. It found at least one arguable ground but held there was nothing capable of being stayed since the criminal proceedings had already been terminated and could resume upon a successful appeal, any flight risk being a matter for the DPP. The application was dismissed with costs in the appeal.

Key legal issues

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01

Whether the twin principles for stay under Rule 5(2)(b) are conjunctive

Holding

Both limbs - arguability and nugatory effect - must be proved; proving only one does not entitle an applicant to stay.

Reasoning

The court restated the well-known Rule 5(2)(b) test: the intended appeal must be arguable (not frivolous, though not necessarily successful) and, if stay is refused and the appeal succeeds, the appeal must not be rendered nugatory. The court expressly held the two principles are conjunctive, not disjunctive, citing Reliance Bank vs Norlake Investments and IL Nwessi vs Wendy Martin.

p. 4
02

Whether the intended appeal was arguable

Holding

The appeal was arguable; at least one ground - whether the learned Judge considered the merits of decisions rather than only the process leading to them, and whether rights claims belonged in a constitutional petition rather than judicial review - was sufficient.

Reasoning

The court found arguable the question whether a judge hearing judicial review prayers, which centre on process rather than substance, may proceed to consider the merits of decisions, and whether claims of violation of rights such as trial within a reasonable time and presumption of innocence should have been brought by constitutional petition rather than in judicial review proceedings.

p. 4
03

Whether the appeal would be rendered nugatory without a stay

Holding

No nugatory aspect existed: the criminal proceedings had already been terminated in execution of the judgment and could resume from where they stood if the appeal succeeded; any flight risk was a matter for the DPP.

Reasoning

Although the respondents argued there were no positive orders to stay, the court noted the criminal case had been terminated and securities discharged, with only the second respondent's sureties remaining. It held nothing was capable of being stayed; on a successful appeal the criminal proceedings could resume, and if the respondents fled the jurisdiction, it would fall on the DPP - who had itself filed an appeal - to trace and bring them to justice.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles conjunctively - arguability of the intended appeal and that the appeal would be rendered nugatory if stay is not granted; satisfying only one is insufficient.
  • An applicant under Rule 5(2)(b) need only establish one arguable ground of appeal, and an arguable appeal is not one that must necessarily succeed.

Court orders

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  1. 1.The application for stay pending appeal under Rule 5(2)(b) is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
J.R. Misc. Civil Application No. 305 of 2012
Jurisdiction invoked
Rules 1(2) and 5(2)(b) of the Court of Appeal Rules - application for stay pending appeal

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, "International Centre For Policy and Conflict v Kamlesh Mansukhlal Damji Pattni & 5 others", Case Analysis (2013). Civil Application No. NAI. 87 of 2013 (UR.57/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/453/eng@2013-07-12

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