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Court of AppealAllowedCivil Application No. NAI 171 of 2015 (UR 138/2015)· [2016] KECA 565 (KLR)

Evans Thiga Gaturu & another v Naiposha Company Limited & 13 others [2016] KECA 565 (KLR)

Court of Appeal
19 May 2016
AVAlnashir VisramFSF. SichaleJMJ. Mohammed
2,469 words in judgment
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The bottom line

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Kenya's Court of Appeal halted arrest warrants against two advocates, confirming courts can pause contempt enforcement while an arguable appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Visram, Sichale and J. Mohammed, JJ.A) on a notice of motion dated 19th June 2015 by Evans Thiga Gaturu and Carolyne Wanjihia, advocates, seeking an injunction and stay of proceedings pending an intended appeal against the ruling and orders of Gikonyo, J of the High Court delivered on 10th June 2015 in H.C. Misc. Appln. No. 222 of 2012. The impugned orders directed the applicants to deposit disputed sale proceeds in court arising from a professional undertaking given in a land sale transaction, and subsequent orders of 1st July 2015 issued warrants of arrest against them for contempt for non-compliance. The applicants argued they were condemned unheard without service, in breach of Articles 50(1) and 159 of the Constitution, and that enforcement of the professional undertaking should have proceeded under Order 52 of the Civil Procedure Rules. Applying the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules - arguability and nugatory-ness - the Court found the appeal was not frivolous, noting that even a single arguable point suffices and that an arguable appeal need not be one that must succeed. On the nugatory limb, the Court weighed the competing interests and found that refusal would result in the applicants' arrest, rendering the intended appeal nugatory. The Court allowed the application and stayed the warrants of arrest and orders arising therefrom pending the intended appeal, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the appeal arguable on grounds including the alleged condemnation of the applicants unheard and the allegedly improper procedure for enforcing the professional undertaking under Order 52 of the Civil Procedure Rules.

Reasoning

The Court declined to go into the merits at that stage. It noted the applicants' claims that they were condemned without service and hearing, in breach of Articles 50(1) and 159, and that the undertaking was not enforced per Order 52. Applying settled principles that even a single arguable point suffices and that an arguable appeal need not succeed, the Court was satisfied the appeal was not frivolous.

p. 4
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The Court held that refusing the application would render the intended appeal nugatory because warrants of arrest had been issued and the applicants, both advocates, faced arrest pending the hearing of the appeal.

Reasoning

Weighing the competing interests on the case's peculiar facts, and taking cue from Stanislus Nyagaka Ondimu where the risk of the applicant serving a jail sentence rendered the appeal nugatory, the Court found that rejection of the application would result in the applicants' arrest, thereby rendering any success in the intended appeal nugatory. Both limbs of Rule 5(2)(b) were therefore satisfied.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, unless an injunction or stay is granted, the success of the appeal will be rendered nugatory.
  • A single arguable point is sufficient for the grant of orders under Rule 5(2)(b).
  • An arguable appeal need not be one that must succeed; it suffices that it deserves the court's consideration.

Court orders

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  1. 1.Stay of the orders for warrants of arrest for alleged contempt of court made by the High Court (Gikonyo J) dated 10th June 2015 and orders arising therefrom dated 1st July 2015, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSection 1(2)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure RulesOrder 52
  • Advocates ActSection 55

Cases cited (11)

  • Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd
    Civil Appln No. NAI 157 of 2006 (unreported)
  • Githunguri v Jimba Credit Corporation Ltd, No 2
    (1988) KLR 838
  • J. K. Industries Ltd v Kenya Commercial Bank Ltd
    (1982-88)
  • Joseph Gitahi & Another v Pioneer Holdings Limited & 2 Others
    CA No. 124 of 2008
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Dennis Mogambi Mongare v Attorney General & 3 Others
    Civil Appln No. NAI 265 of 2011
  • Stanislus Nyagaka Ondimu v Kalyasoi Farmers Co-operative Society & Others
    Civil Application No. NAI 337 of 2005 (unreported)
  • Mwangi Wangondu v Nairobi City Commission
    Civil Appeal No. 95 of 1988
  • P.R. Kotecha and Another v N.R. Pav and Another
    Civil Application No. Nai. 63 of 2003 (unreported)
  • Jackson Kipkemboi Koskey & 7 Others v Samuel Muriithi Njogu & 4 Others
    [2007] eKLR
  • Samson Getangita Nkwege & 2 Others v Anison Nyahiri Muhindi
    [2008] eKLR
On appeal from
High Court of Kenya at Nairobi
H.C. Misc Appln. No. 222 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, Section 1(2) of the Appellate Jurisdiction Act and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Evans Thiga Gaturu & another v Naiposha Company Limited & 13 others [2016] KECA 565 (KLR)", Case Analysis (2016). Civil Application No. NAI 171 of 2015 (UR 138/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/565/eng@2016-05-19

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