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Court of AppealPartially AllowedCivil Application No. 12 of 2018· [2018] KECA 690 (KLR)

Pioneer International Schools Limited & another v Delmonte Kenya Limited & 4 others [2018] KECA 690 (KLR)

Court of Appeal
23 March 2018
2,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused contempt sentencing against Pioneer Schools and its director, confirming un-purged contempt does not bar a stay hearing.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Gatembu Kairu, M'inoti and Murgor, JJ.A) on consolidated applications for stay of execution and of further proceedings pending intended appeals against a ruling of the Environment and Land Court (Okong'o, J) delivered on 8th December 2017 in ELC No. 1245 of 2015. The ELC had found Pioneer International Schools Ltd and its director/trustee Peter Kahara Munga guilty of contempt of interim injunction orders issued on 17th December 2015 restraining dealing with Del Monte's property L.R. No. 12157/2, and granted them 120 days to purge the contempt, with sentencing fixed for 10th April 2018. The Court of Appeal consolidated Civil Application No. 12 of 2018 (Pioneer) and No. 13 of 2018 (Munga) by consent. Applying the settled rule 5(2)(b) test of arguability plus nugatory effect, the Court held the intended appeals arguable - particularly on jurisdiction and the grant of mandatory orders without an inter partes hearing - and found the appeals would be rendered nugatory because sentencing would precede the hearing, placing Munga's personal liberty at risk. The Court rejected Del Monte's contention that a contemnor who has not purged the contempt cannot be heard. Stay of execution and of further proceedings was granted on condition that the record of appeal be filed and served within 30 days, failing which the orders would stand discharged. Costs were made to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable and not frivolous, particularly on the grounds that the contempt orders were made without jurisdiction and that mandatory orders were granted without an inter partes hearing.

Reasoning

The applicants proposed to argue that the ELC lacked jurisdiction, that jurisdiction must be determined before contempt, and that temporary mandatory orders were improperly granted ex parte. The Court found these non-frivolous, echoing the settled position that jurisdiction is everything and without it no court can make valid orders.

p. 4
02

Whether the intended appeals will be rendered nugatory

Holding

The appeals would be rendered nugatory if stay was not granted, since sentencing was scheduled for 10th April 2018 before the appeals could be heard, and Munga's personal liberty was at stake.

Reasoning

The ELC had found the applicants guilty of contempt and fixed sentencing for 10th April 2018, a date before the intended appeals could be heard. Munga faced committal to jail. Relying on the principle that deprivation of personal liberty is a serious constitutional issue that cannot be reversed, the Court held the nugatory test satisfied.

p. 4
03

Whether failure to purge contempt bars a stay application

Holding

There is no absolute bar to hearing an applicant who has not purged the contempt; the Rose Detho decision means each case must be decided on its own circumstances.

Reasoning

Del Monte argued, citing Rose Detho and other authorities, that the applications should not be entertained because the applicants had made no attempt to purge the contempt. The Court rejected this as an absolute proposition, reading Rose Detho as requiring case-by-case determination, and proceeded to consider the applications on their merits.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that the appeal will be rendered nugatory if stay or injunction is not granted.
  • There is no absolute bar to the Court hearing an applicant for stay who has not purged a contempt; each case must be decided on its own circumstances.
  • Where personal liberty is threatened and the applicant intends to challenge on appeal the basis of that threat, the court will be inclined to grant a stay because liberty once lost cannot be reversed.

Court orders

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  1. 1.Consolidation of Civil Application No. 12 of 2018 and Civil Application No. 13 of 2018, with No. 12 as lead file (by consent)
  2. 2.Grant of prayers 2 and 3 of the application dated 23rd January 2018 (stay of execution of the contempt orders and stay of further proceedings in the ELC)
  3. 3.Applicants to file and serve the record of appeal within 30 days of delivery of the Ruling, failing which the orders granted shall stand discharged
  4. 4.Costs of the applications to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Civil Procedure ActSection 63

Cases cited (10)

  • Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd
    Civil Application No. Nai 157 of 2006
  • Econet Wireless Kenya Ltd vs Minister of Information & Communication of Kenya & another
    [2005] eKLR
  • Omega Enterprises (Kenya) Limited vs KTDC & 2 others
    [1988] eKLR
  • Rose Detho vs Ratilal Automobiles Ltd & 6 others
    [2007] eKLR
  • Hadkinson vs Hadkinson
    [1952] 2 All ER 567
  • A.B & another vs. R. B.
    [2016] eKLR
  • Reliance Bank Ltd vs Norlake Investments Ltd
    [2002] 1 EA 227
  • Fatima Ali Mohamed vs Harbans Singh Soor
    [2007] eKLR
  • Justus Kariuki Mate & another vs Martin Nyaga Wambora
    [2014] eKLR
  • Commissioner of Mines & Geology & 2 others vs Stema Alloys Enterprises Ltd
    [2015] eKLR
On appeal from
Environment and Land Court
ELC No. 1245 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - stay of execution/proceedings pending intended 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, "Pioneer International Schools Limited & another v Delmonte Kenya Limited & 4 others [2018] KECA 690 (KLR)", Case Analysis (2018). Civil Application No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/690/eng@2018-03-23

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