Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal Application No. 334 of 2019· [2020] KECA 834 (KLR)

Kabale Tache Arero v Salome Munubi & 3 others; Muhammad Swazuri Chairman National Land Commission & another (Interested Parties) [2020] KECA 834 (KLR)

Court of Appeal of Kenya
3 April 2020
WKW. KaranjaHOHannah OkwenguFSF. Sichale
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal halted contempt proceedings against the National Land Commission's CEO, ruling that facing jail time justifies pausing a case pending appeal.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Karanja, Okwengu and Sichale JJ.A) on a notice of motion dated 15th October 2019 brought under Rule 5(2)(b) of the Court of Appeal Rules by Kabale Tache Arero, the Secretary/CEO of the National Land Commission. She sought stay of the proceedings in ELRC Petition 8 of 2019 and stay of execution of contempt rulings delivered by Onyango J on 7th October 2019 and 11th October 2019, pending an intended appeal. The underlying ELRC judgment of 24th May 2019 had ordered renewal of the respondents' contracts; the applicant was subsequently found in contempt, fined Kshs. 300,000, and faced a further contempt application seeking her committal to civil jail for six months. Applying the twin principles restated in Stanley Kang'ethe Kinyanjui v Tony Keter, the court found the intended appeal arguable because it raised the bona fide question whether orders can be made against a person who was not a party to the proceedings, and found the nugatory limb satisfied because incarceration, if the appeal succeeded, could not be undone. The court granted the orders sought in the motion and made no order as to costs. The ruling is interlocutory and does not disturb the decision below; the intended appeal remains to be heard.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The question whether orders can be made against a party who is not party to the proceedings is a bona fide arguable ground.

Reasoning

The applicant argued she was not a party to the ELRC proceedings yet execution of the contempt orders was directed at her personally, and that no specific directions were given to her. The court held this was not an idle grievance, satisfying the arguability limb without making definitive findings on the merits.

p. 4
02

Nugatory-ness of the intended appeal

Holding

The likelihood of incarceration, which cannot be undone if the appeal succeeds, satisfies the nugatory limb.

Reasoning

The applicant faced a further contempt application seeking commitment to civil jail for six months. The court reasoned that if she were incarcerated and the appeal later succeeded, that loss of liberty would be irreversible, so stay was warranted.

p. 4

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay; a single bona fide arguable ground suffices, and the possibility of incarceration that cannot be undone satisfies the nugatory limb.

Court orders

#
  1. 1.Stay of the proceedings of ELRC Petition 8 of 2019 and stay of execution of the orders and any further orders from the Employment and Labour Relations Court pending the hearing and determination of the intended appeal
  2. 2.No order as to costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (11)

  • Sanitam Services (E.A.) Limited v Rentokil (K) Limited & another
    [2019] eKLR, Civil Appeal No. 379 of 2017
  • National Bank of Kenya Limited & another v Geoffrey Wahome Muotia
    [2016] eKLR, Civil Application No NAI 283 of 2015 (UR 241/2015)
  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government vs Miguna Miguna & 4 others
    [2018] eKLR, Civil Application No. Nai. 1 of 2017 (Ur 1/2018)
  • Stanley Kang'ethe Kinyanjui vs. 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
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC No. 8 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kabale Tache Arero v Salome Munubi & 3 others; Muhammad Swazuri Chairman National Land Commission & another (Interested Parties) [2020] KECA 834 (KLR)", Case Analysis (2020). Civil Appeal Application No. 334 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/834/eng@2020-04-03

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