Anne Jepkemboi Ngeny v Joseph Tireito & another [2018] KECA 228 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment because the applicant had ignored earlier court orders and been found in contempt twice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the order of stay is not granted, the appeal would be rendered nugatory
- 3.Whether the applicant's motion, coming after conditional stay orders had been granted by the Environment and Land Court and after findings of contempt against her, is frivolous or an abuse of the process of the court
Key legal issues
#Whether an applicant for stay under Rule 5(2)(b) who has disobeyed conditional stay orders granted by the trial court is entitled to relief
No. Although the jurisdiction under Rule 5(2)(b) is original and independent of the trial court's decision, a litigant who has disobeyed conditional stay orders and been found in contempt cannot use the Rule to circumvent those orders.
The court acknowledged that Rule 5(2)(b) confers an original, independent discretion, so the existence of a prior stay order in the trial court does not by itself bar a fresh application. However, the applicant had failed for over three years to comply with the conditions attached to the stay orders of 30th September 2014, and had twice been found in contempt. Granting stay would allow her to ignore the orders of the lower court, which the court held to be an abuse of process and an attempt to impede the cause of justice.
Whether the twin principles for a Rule 5(2)(b) application (arguability and nugatory aspect) were satisfied
The court did not reach a full assessment because the background disclosed an abuse of process; it further found the nugatory claim insincere since the orders already in place preserved the subject matter of the dispute.
Although a Rule 5(2)(b) application ordinarily turns only on whether the intended appeal is arguable and whether it would be rendered nugatory, the background and submissions raised the antecedent question of abuse of process. On the merits, the orders of 30th September 2014 (restraint on dealings, inhibition on registration, and possession remaining with the 1st respondent subject to conditions) were 'clearly designed to preserve the subject matter of the dispute', defeating the nugatory claim.
Legal principles established
#- A party who has obtained conditional stay orders from the trial court and failed to comply with them cannot invoke the Court of Appeal's original jurisdiction under Rule 5(2)(b) to ignore those orders; doing so is an abuse of the process of the court.
- The Court of Appeal's jurisdiction under Rule 5(2)(b) is original and discretionary, and is a procedural innovation designed to empower the Court to entertain an interlocutory application for preservation of the subject matter of the appeal in order to ensure the just and effective determination of appeals.
Court orders
#- 1.Dismissal of the applicant's notice of motion dated (amended) 4th December, 2017 seeking stay of execution of the judgment of the Environment and Land Court delivered on 26th February, 2014 and all subsequent orders pending the hearing of her appeal
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Eldoret
- Environment and Land Court Case No. 441 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and section 3(1)&(2) of the Appellate Jurisdiction Act
Relief refused
#Order of stay of execution of the judgment delivered by the Environment and Land Court on 26th February, 2014 and all other subsequent orders pending the hearing of the appeal
The Environment and Land Court had already granted conditional stay orders which the applicant had not complied with for over three years, and had twice found her in contempt; the application, brought more than three years after those orders, was an abuse of the process of the court.
Costs
Costs shall be in the intended appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The question is, should the applicant then be allowed to ignore the orders of the lower court by purporting to invoke this Court’s original jurisdiction under Rule 5(2)(b) of the Court Rules? We answer that question with an emphatic “No”.
That is an abuse of the process of the court.
It is now well settled that this Court’s jurisdiction under Rule 5(2)(b) is both original and discretionary
Accordingly, we dismiss the application and order that the costs shall be in the intended appeal.
Issues in the judgment
#Internal date inconsistency: the contempt ruling of Ombwayo J is dated 8th March, 2018 in one passage but referred to as the ruling of '8th May, 2018' elsewhere.
The applicant is described variously as 'applicant', 'appellant' and 'second defendant' for the same person, and the notice of appeal is stated as filed on 26th April, 2014, before the stay ruling of 30th September, 2014 it is said to challenge the delay of; the chronology is confusing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Jepkemboi Ngeny v Joseph Tireito & another [2018] KECA 228 (KLR)", Case Analysis (2018). Civil Application No. 50 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/228/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.