Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates v Josephine Akoth Onyango & 5 others [2014] KECA 365 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block criminal proceedings while an appeal was pending, because winning the appeal later could simply revive the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal in Civil Appeal No. 51 of 2014 was arguable
The Court found the appeal arguable on the interpretation of section 193A of the Criminal Procedure Code and the courts' power to stop abuse of the criminal process, but arguability alone was insufficient.
The Court identified as arguable the questions whether concurrent criminal and civil proceedings are ipso facto abuse of process, and the interplay between section 193A of the Criminal Procedure Code and the court's undoubted power to stop abuse of the criminal process. It reiterated that a single bona fide arguable issue suffices, but that this was only the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory if the stay and injunction were not granted
The Court was far from satisfied that the appeal would be rendered nugatory: if the appeal succeeded, the stopped criminal case would simply resume, and the appeal had been fast-tracked for hearing within a month.
The Court reasoned that an appeal is rendered nugatory only where success cannot reverse the intervening situation. Here, if the appeal succeeded, Kibera Criminal Case No. 2178 of 2013 would resume; the appeal was scheduled for 23rd October 2014, and the key witnesses were the same parties before the Court. Refusal caused only a short delay, whereas granting the orders would expose citizens to a prosecution whose validity was under appeal.
Whether a mandatory injunction should issue restraining the respondents from returning to the High Court to block their prosecution
Refused: a mandatory injunction does not issue at the interlocutory stage except in the clearest of cases, and courts will not ordinarily restrain suitors from approaching the court for remedies.
The Court held that outside the purview of vexatious litigation it would be unusual to restrain a suitor from approaching a court for a remedy in the face of apprehended violation of rights. It found the prayer remarkable coming from the applicant who had spared no effort to protect his own constitutional rights.
Legal principles established
#- An arguable appeal is not one which must succeed but one raising serious questions of law or reasonable argument deserving consideration; even a single bona fide arguable issue suffices under Rule 5(2)(b).
- An appeal is rendered nugatory when, even if it succeeds, the intervening situation cannot be reversed to reflect the outcome of the appeal.
- Under Rule 5(2)(b) an applicant must satisfy both twin principles - arguability and nugatory effect - since satisfaction of only one limb is not enough.
- In exercising discretion under Rule 5(2)(b), the Court weighs the respective claims of the parties and the relative convenience or inconvenience the granting or refusing of the order will occasion.
- A mandatory injunction does not issue at the interlocutory stage except in the clearest of cases.
Court orders
#- 1.The Motion on Notice dated 17th March 2014 is dismissed
- 2.Costs of the application awarded to the 1st, 2nd and 6th respondents
- On appeal from
- High Court of Kenya at Nairobi
- HC Petition No. 471 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction and stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Philip Bliss Aliker v Grain Bulk Handlers Limited & Another[2020] KEHC 4397 (KLR)26 Jun 2020
Cite this brief
#Cite this brief
Caselaw, "Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates v Josephine Akoth Onyango & 5 others [2014] KECA 365 (KLR)", Case Analysis (2014). Civil Application No. NAI 49 of 2014 (UR 36/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/365/eng@2014-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.