Attorney General v Rachael Mutheu Ndambuki
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs. 250,000 contempt fine because money paid can be recovered if the appeal later succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The draft memorandum of appeal contains arguable points, satisfying the first of the twin principles for relief under rule 5(2)(b).
Applying the principles summarised in Stanley Kang'ethe v Tony Keter & Others, the court perused the grounds and the draft memorandum annexed to the application and was satisfied that arguable points were disclosed. Arguability requires only a single arguable point, not that the appeal be likely to succeed.
Whether the intended appeal would be rendered nugatory if stay is not granted
The nugatory prong was not established because the threatened execution is payment of a contempt fine which is recoverable should the appeal succeed.
The court distinguished between execution that cannot be undone and payment of money that can be recovered. Since nothing in the applicant's supporting evidence suggested the fine would be irrecoverable once paid, refusal of stay would not render a successful appeal nugatory. Both twin principles must be satisfied.
Legal principles established
#- An applicant for stay of proceedings/execution under rule 5(2)(b) must satisfy the twin principles: arguability of the appeal and that the appeal would be rendered nugatory absent stay; a monetary fine recoverable on success does not satisfy the nugatory prong.
Court orders
#- 1.The applicant's application dated 2nd June 2020 is dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Mombasa ELRC Constitutional Petition No. 2 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Rachael Mutheu Ndambuki", Case Analysis (2020). Mombasa Civil Application No. 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/122/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.