Matiang'i, Cabinet Secretary, Ministry of Interior and Co-Ordination of National Government v Miguna & 4 others (Civil Application 1 of 2017) [2018] KECA 789 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause High Court orders against senior officials, confirming that contempt of court costs must be shown to cause real, irreversible harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the Rule 5(2) twin principles apply to an application expressed under Rule 5(2)(a) and section 33 of the Contempt of Court Act
Yes. The impugned ruling disclosed no sentence or penalty; the general stay principles crystallised in Rule 5(2)(b) applications apply, and section 33 of the Contempt of Court Act does not afford a wider latitude to applicants.
The Court read the impugned ruling and found it contained determinations amenable to the general principles of stay rather than a conviction or sentence being executed. Section 33 leaves the grant of stay to the discretion of the appellate court, exercisable in accordance with the crystallised Rule 5(2) principles; indeed for a purely criminal appeal the threshold is higher, requiring overwhelming chances of success. Reliance on section 33 therefore constricts rather than expands an applicant's room.
Whether the applicants should be denied audience for contempt of court
No. Although courts will firmly deal with contemnors and may deny them audience in deserving cases, the applicants had complied with the Judge's orders by swearing affidavits and giving undertakings, so this was not a proper case for denying audience.
The Court restated that court orders are compulsive and expressly binding, and that contemnors may be refused audience where their disobedience is headstrong and contumacious. However, the learned Judge had himself not denied the applicants a hearing but given them further chances; they swore affidavits and gave undertakings as directed. No serious attempt was made to urge the Court to send them away, so audience was granted.
Whether the intended appeals are arguable
Yes. Arguable points exist on whether the right to be heard was accorded, whether the Contempt of Court Act was properly applied, and whether parties not involved in the initial proceedings can be found in contempt of orders not directed at them.
An arguable appeal is one raising a single bona fide point worthy of response and interrogation; it need not succeed. The Court found it a gross exaggeration to term the appeals absolutely unarguable, noting the patent contradiction in counsel's describing the CS's appeal as 'arguable but frivolous'. Prudence dictated that the Court not express views on the merits, its remit being merely to confirm a single bona fide arguable point.
Whether the intended appeals would be rendered nugatory if stay was denied
No. No clear appeal-negating event was demonstrated; the return of Miguna was reversible and posed no danger of social upheaval, and the fears of removal proceedings were speculative conjecture.
The Court received no clear answer as to what harm would flow from Miguna's return; the declarations quashed by the Judge had already been suspended by the High Court in Petition No. 51 of 2018, so any stay would be rendered of no effect. There was nothing irreversible in the orders subsisting, and the fears of removal under Chapter 6 or Article 245 were based on no filed or contemplated process - mere apprehensions of indistinct acts at an indeterminate time.
Legal principles established
#- Court orders are binding and must be obeyed by all parties regardless of status; no party may choose which orders to obey or negotiate the manner of compliance.
- A party found to have breached or disobeyed court orders may, in deserving cases, be denied an audience until the contempt is purged, notwithstanding the right to fair hearing.
- An applicant under Rule 5(2) must satisfy both twin principles - an arguable appeal and the nugatory-aspect - and a single bona fide arguable ground suffices for arguability.
Court orders
#- 1.The several applications for stay of execution are dismissed
- 2.Costs awarded to the respondents
- 3.Liberty to apply granted to the applicants as and when any removal process is initiated
- 4.The appeals, once filed, to be fast-tracked
- On appeal from
- High Court of Kenya, Nairobi, Criminal Division
- Misc. Criminal Application No. 57 of 2018
- Jurisdiction invoked
- Rule 5(2)(a) of the Court of Appeal Rules, read with Section 33 of the Contempt of Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v County Government of Isiolo & 3 others; Mbogo & Muriuki Advocates (Ex parte Applicant) (Judicial Review E004 of 2025) [2026] KEELC 849 (KLR)[2026] KEELC 849 (KLR)3 Feb 2026applied
- Republic v County Government of Isiolo & 3 others; Mbogo & Muriuki Advocates (Ex parte Applicant) (Judicial Review E004 of 2025) [2025] KEELC 7518 (KLR)[2025] KEELC 7518 (KLR)23 Oct 2025
- Kenya Hospital Association t/a The Nairobi Hospital & another v Onyambu & 2 others (Civil Application E449 of 2025) [2025] KECA 1653 (KLR)[2025] KECA 1653 (KLR)9 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Matiang'i, Cabinet Secretary, Ministry of Interior and Co-Ordination of National Government v Miguna & 4 others (Civil Application 1 of 2017) [2018] KECA 789 (KLR)", Case Analysis (2018). Civil Applications Nos. 57 & 74 of 2018 (as consolidated before the Court of Appeal) (arising from Misc. Criminal Application No. 57 of 2018, High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/789/eng@2018-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.