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Court of AppealDismissedCivil Application No. 41 of 2017

Martin Tindi Khaemba v Law Society of Kenya & 2 others [2018] KECA 104 (KLR)

Court of Appeal of Kenya
6 December 2018
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a lawyer's disciplinary hearing because he proved neither a strong appeal nor real harm from continuing.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of proceedings in Disciplinary Committee Tribunal Cause No. 155 of 2015 pending an intended appeal against the ruling of Ogola, J. dated 31st May 2017 in Mombasa Judicial Review Misc. Application No. 22 of 2016, which had dismissed the applicant advocate's judicial review challenge to the disciplinary complaint. The complaint alleged that the advocate apportioned himself 3 acres of suit land in lieu of taxed costs of Kshs.14,200,000 without the consent of the Mabirikani Committee members. The applicant contended that in light of the certificate of taxation and Kasango, J.'s orders, the disciplinary complaint was res judicata and the Tribunal acted without jurisdiction. The Court restated the twin Rule 5(2)(b) criteria - an arguable appeal and nugatory effect - and held neither was established. Arguability failed because the Disciplinary Tribunal has its own mandate under the Advocates Act to determine advocate-client disputes and whether it exceeded it could not be established, the proceedings not yet having commenced. The nugatory limb failed because the applicant's apprehension rested on mere presumption of prejudicial orders, which cannot found the discretion. The application was dismissed, with costs of the application to abide the outcome of the intended appeal. The High Court's ruling itself was not disturbed; the application was interlocutory only.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal against Ogola, J.'s ruling is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if stay of the Disciplinary Tribunal proceedings is not granted

Key legal issues

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01

Test for grant of stay of proceedings or other relief under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The twin tests of an arguable appeal and nugatory effect were not satisfied; the application was dismissed

Reasoning

The Court restated that although its Rule 5(2)(b) discretion is unfettered, it is exercised within established parameters: the applicant must show an arguable, non-frivolous appeal and that the appeal would be rendered nugatory if stay is denied. On the facts, the Disciplinary Tribunal has its own mandate under the Advocates Act and whether it exceeded it could not be established since proceedings had not commenced; the nugatory limb rested on mere presumption of prejudice.

p. 3
02

Whether the Disciplinary Tribunal lacked jurisdiction to entertain the complaint against the advocate

Holding

The Court declined to make a final determination, holding arguability was not demonstrated since the Tribunal has a statutory mandate to determine advocate-client disputes and its proceedings had not yet commenced

Reasoning

The intended appeal rested principally on the allegation that the Disciplinary Tribunal lacked jurisdiction because the taxed costs certificate and Kasango, J.'s orders were unchallenged and the complaint was res judicata. The Court, careful not to determine the merits, held the point not arguable because the Tribunal's mandate under the Advocates Act is distinct and whether it acted outside that mandate could not yet be assessed.

p. 3
03

Whether the intended appeal would be rendered nugatory absent stay

Holding

Nugatory effect was not demonstrated; apprehension of prejudicial orders was mere presumption, insufficient to found the discretion

Reasoning

The applicant feared the Disciplinary Tribunal would issue orders prejudicial to him, but the Court held that discretion cannot be exercised on mere fear or suspicion of what might happen. The purpose of Rule 5(2)(b) orders is to halt something that will indisputably happen in their absence, which the applicant did not establish.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that he has an arguable appeal which is not frivolous, and that if the orders sought are not granted the intended appeal will be rendered nugatory if it eventually succeeds
  • The Court cannot grant Rule 5(2)(b) relief on mere fear or suspicion of what a party thinks might happen; the orders are meant to halt something which will indisputably happen in their absence

Court orders

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  1. 1.The application for stay of proceedings is dismissed
  2. 2.Costs of the application shall abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
Judicial Review Misc. Applic. No. 22 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (discretionary relief pending intended appeal)

Relief refused

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Stay of proceedings in Disciplinary Committee Tribunal Cause No. 155 of 2015 pending the intended appeal

The applicant failed to establish both limbs - an arguable appeal and that the appeal would be rendered nugatory without stay; the appeal was not arguable and the apprehension of prejudice was based on mere presumption

p. 3

Costs

Costs of this application shall abide the outcome of the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

before any of the above mentioned orders are granted, the Court should be satisfied that firstly, the applicant has demonstrated that he/she has an arguable appeal or that the appeal is not frivolous. Secondly, that if the orders sought are not granted, the intended appeal will be rendered nugatory, if it eventually succeeds
p. 1Twin test for Rule 5(2)(b) relief
Our understanding of the essence of orders issued under Rule 5(2)(b) is to halt the occurrence of something which will indisputably happen in the absence of such orders
p. 3Nature and purpose of Rule 5(2)(b) orders
Therefore, we find that the application lacks merit and is hereby dismissed. Costs of this application shall abide the outcome of the intended appeal.
p. 3Final orders and costs

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, "Martin Tindi Khaemba v Law Society of Kenya & 2 others [2018] KECA 104 (KLR)", Case Analysis (2018). Civil Application No. 41 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/104/eng@2018-12-06

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