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Court of AppealAllowedNot stated in the judgment (Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules)· [2020] KECA 571 (KLR)

Waithaka v Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & 2 others (Civil Application 8 of 2020) [2020] KECA 571 (KLR)

Court of Appeal of Kenya
19 June 2020
Martha Karambu KoomeM. K. KoomeASAsike-MakhandiaAMA. K. Murgor
2,614 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 halted a judicial tribunal's disciplinary hearings against Justice Waithaka until her appeal is heard, protecting irreversible harm.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on a Notice of Motion dated 17th January 2020 brought by Justice Lucy Njoki Waithaka, a suspended Environment & Land Court judge, under Rule 5(2)(b) of the Court of Appeal Rules. She sought a stay of proceedings before a Tribunal appointed on 4th June 2019 to investigate her conduct, pending her appeal against an ELRC judgment in Petition No. 205 of 2019, which had partially succeeded by quashing parts of Gazette Notice No. 4851 as ultra vires Article 168(5) of the Constitution and confining the Tribunal's investigations to representations by the Judicial Service Commission. The only issue framed was whether the twin conditions for a stay of proceedings under Rule 5(2)(b) were met. Applying the parameters in Stanley Kang'ethe Kinyanjui v Tony Keter, the Court found the appeal arguable: the grounds alleging violation of the applicant's constitutional rights and the trial court's failure to exercise jurisdiction under Articles 23 and 165(3)(b) were not frivolous. On the nugatory limb, the Court held that allowing the Tribunal proceedings to continue would produce an irreversible outcome, potentially violate the applicant's judicial independence under Article 160, and destroy her public image should the appeal succeed, particularly as the subject-matter judgment in Kericho ELC Case No. 64 of 2008 was itself under appeal before the Court in Nakuru. The application was allowed; proceedings before the Tribunal were stayed pending the appeal, which was accorded a priority hearing date. Costs of the application were ordered to abide the outcome of the appeal. This was an interlocutory discretionary ruling, not an appeal against the ELRC decision itself, so the decision below was neither affirmed nor reversed.

Key legal issues

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01

Whether the applicant demonstrated an arguable appeal

Holding

The grounds alleging violation of constitutional rights and the failure by the ELRC to exercise its jurisdiction under Articles 23 and 165(3)(b) were not frivolous and made the appeal arguable.

Reasoning

The court applied the settled principle that a single bona fide arguable ground suffices and that an arguable appeal need not necessarily succeed. The memorandum raised serious questions of law concerning the applicant's constitutional rights and freedoms and the jurisdiction of the trial court, which were sufficient to invite the respondents' reaction and merit the Court's consideration at the full hearing.

p. 5
02

Whether the appeal would be rendered nugatory if the Tribunal's proceedings continued

Holding

Yes. Should the Tribunal proceedings continue, the outcome would be irreversible, exposing the applicant to removal proceedings that may violate her constitutional rights under Article 160 and destroy her public image if the pending appeal succeeded.

Reasoning

The court weighed the conflicting claims of both sides and found the applicant's fears genuine and well founded: the subject matter of the complaint is a judgment already under appeal before the Court in Nakuru, and a disciplinary outcome would be irreversible and disproportionate to any suffering the respondents might undergo awaiting the appeal. The Reliance Bank hardship principle was adopted.

p. 5
03

The nature of the jurisdiction under Rule 5(2)(b)

Holding

The jurisdiction is original, unfettered and discretionary but must be exercised judiciously and with reason, not on the craze of impulse or pity.

Reasoning

Relying on Stanley Kang'ethe Kinyanjui v Tony Keter, the court restated the parameters: the exercise is original and discretionary and not an appeal from the trial judge's discretion; the discretion is wide provided it is just; the court becomes seized only after a notice of appeal under Rule 75; and definitive findings of fact or law must not be made at that stage.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory if the stay is denied.
  • Stay of proceedings is a serious judicial action impinging on the right of access to justice and the right to a fair trial, to be granted only in the interest of justice.

Court orders

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  1. 1.Stay of proceedings before the 1st respondent (the Tribunal) pending the hearing and determination of the appeal
  2. 2.The appeal to be given a priority hearing date
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 168(5)
  • Constitution of Kenya, 2010Article 160
  • Constitution of Kenya, 2010Article 168
  • Constitution of Kenya, 2010Article 168(8)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 165(3)(b)
  • Constitution of Kenya, 2010Article 23
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (10)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 others
    (2013) eKLR
  • Ruben & 9 others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care K Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Francis N. Githiari v Njama Limited
    [2006] eKLR
  • Global Tours & Travels Limited; Nairobi Winding Up Cause No. 43 of 2000
On appeal from
Employment & Labour Relations Court, Nairobi
ELRC No. 205 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay of proceedings/injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Waithaka v Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & 2 others (Civil Application 8 of 2020) [2020] KECA 571 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/571/eng@2020-06-19

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