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Court of AppealAllowedCivil Application No. 207 of 2019· [2019] KECA 365 (KLR)

David Kirimi Charles (Suing as the legal representative of Abraham Kailemia Ikigu (Deceased) v Muntu Kirimania Mungania (Suing as legal representative of Doris Kinanu Kirimania (Deceased) [2019] KECA 365 (KLR)

Court of Appeal
27 September 2019
Mohamed Abdulahi WarsameM. WarsameDMD.K. MusingaSKS. ole Kantai
939 words in judgment
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The bottom line

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Kenya's Court of Appeal halted a debtor's imprisonment in civil jail, ruling a sickly appellant shouldn't be jailed before his 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 (Warsame, Musinga and Kantai, JJ.A.) on an application under rules 5(2)(b), 20, 42 and 47 of the Court's Rules for stay of execution pending appeal. The applicant, sued as the legal representative of the estate of the driver whose vehicle caused a fatal road accident in December 2008, had an ex parte judgment of Kshs.1,022,350 entered against him in the Chief Magistrates' Court at Meru. Unable to pay, he was ordered committed to civil jail in execution of the decree. His application for stay pending a constitutional petition was dismissed, and the High Court at Meru (Mabeya, J.) dismissed his appeal on 20 June 2019, holding that the ex parte judgment had not been challenged and that he had rightfully been sued as legal representative of the driver's estate. He filed Civil Appeal No. 260 of 2019 and sought stay of the High Court's order directing his apprehension to continue serving the civil jail term. The application was unopposed; the respondent's advocates were served but neither filed papers nor attended. The Court applied the settled two-limb rule 5(2)(b) test: the applicant need only demonstrate one arguable issue, which need not succeed, and the nugatory inquiry is case-specific. Holding the appeal arguable - notably the contention that civil jail committal on a money decree violates Article 11 of the ICCPR as read with Articles 2(5) and 2(6) of the Constitution - and finding that the sickly applicant's imprisonment would impede prosecution of the appeal, the Court stayed execution of the High Court's judgment and decree pending the appeal, directed that the appeal be heard on a priority basis, and ordered that costs of the application be in the appeal.

Key legal issues

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01

Whether the appeal is arguable

Holding

The Court found the appeal arguable, including the contention that committal to civil jail in execution of a money decree may be unconstitutional under the ICCPR as read with Articles 2(5) and 2(6) of the Constitution.

Reasoning

The Court applied the settled rule 5(2)(b) threshold: an arguable issue need not be one that must succeed, only one that is not frivolous and merits the Court's consideration. The grounds raised, including the failure to adjudicate on relevant issues, misapprehension of facts, and the constitutional challenge to civil jail committal, were sufficient.

p. 2
02

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

Holding

Stay was granted because the sickly applicant, if imprisoned, may be unable to pursue his appeal.

Reasoning

Applying Reliance Bank Ltd v Norlake Investments Ltd, the Court weighed the circumstances of each case. The respondent holds an unsatisfied decree, but the applicant's personal liberty and poor health meant incarceration could prevent him from prosecuting the appeal, rendering its success nugatory. The balance favoured affording the applicant the opportunity to pursue the appeal.

p. 2

Legal principles established

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  • On a rule 5(2)(b) application, the applicant must satisfy the Court that the appeal is arguable and that unless the orders sought are granted the appeal shall be rendered nugatory; a single arguable issue suffices and it need not be one that must succeed.
  • Whether the success of an appeal would be rendered nugatory must be considered in light of the circumstances of each case.

Court orders

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  1. 1.Stay of execution of the judgment and decree in Meru Civil Appeal No. 74 of 2018 pending hearing and determination of Civil Appeal No. 260 of 2019
  2. 2.The appeal to be set down for hearing on priority basis in the course of the Court's current term
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 20
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 47
  • Constitution of Kenya, 2010Article 2(5)
  • Constitution of Kenya, 2010Article 2(6)
  • International Covenant on Civil and Political Rights (UNICCPR)Article 11

Cases cited (2)

  • KENYA RAILWAYS CORPORATION v EDERMAN PROPERTIES LTD
    Civil Application No. Nai. 176 of 2012
  • RELIANCE BANK LTD v NORLAKE INVESTMENTS LTD
    [2002] 1 E.A. 232
On appeal from
High Court of Kenya at Meru
Civil Appeal No. 74 of 2018
Jurisdiction invoked
Rules 5(2)(b), 20, 42 and 47 of the Court of Appeal Rules

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, "David Kirimi Charles (Suing as the legal representative of Abraham Kailemia Ikigu (Deceased) v Muntu Kirimania Mungania (Suing as legal representative of Doris Kinanu Kirimania (Deceased) [2019] KECA 365 (KLR)", Case Analysis (2019). Civil Application No. 207 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/365/eng@2019-09-27

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