Joho v Doshi & 4 others (Civil Application 29 of 2020) [2021] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal let former Mombasa Governor Joho pause a land case, but refused to stop a contempt order because his appeal notice targeted the wrong ruling.
What this practically means
#Executive summary
#Key legal issues
#Right of a non-party to appeal
A non-party affected by a decision may lodge a notice of appeal under Rule 75(1); the applicant falls within Rule 75(1)
Rule 75(1) requires 'any person who desires to appeal' to give notice in writing. The court read this as accommodating a person affected by a decision even though not a party to the lower-court proceedings, citing Commercial Bank of Africa Ltd v Isaac Kamau Ndirangu. The applicant, condemned in the contempt ruling though not a party, was therefore competent to appeal and to bring the application.
Stay of execution versus stay of proceedings
Stay of execution of the 12th February 2020 contempt order refused for want of a notice of appeal by the applicant against that order, but stay of proceedings granted based on the notice of appeal against the ruling of 22nd April 2020
The Nguruman principle requires the notice of appeal to relate to the order to be stayed. Since the applicant's notice of appeal concerned only the 22nd April 2020 ruling dismissing his application to set aside, stay of execution could not issue; however, the stay-of-proceedings prayer could properly rest on that notice of appeal.
Arguability and nugatory-ness
The intended appeal is arguable — complaints that the applicant was not a party, was not served, and was wrongly assumed to be represented by the County Attorney merit consideration — and the appeal would be rendered nugatory because the applicant risks deprivation of liberty, an irreversible harm
Applying the twin Rule 5(2)(b) tests, the court found the draft grounds of appeal non-frivolous. On nugatory-ness it was persuaded that enforcement could result in deprivation of the applicant's liberty, preventing him from discharging his functions, a harm that could not be reversed if the appeal later succeeded.
Legal principles established
#- A person affected by a decision of a lower court may file a notice of appeal to the Court of Appeal notwithstanding that he was not a party to the proceedings in the lower court
- An application for stay of execution must be anchored on a notice of appeal relating to the order sought to be stayed; a notice of appeal against a later, different order cannot support a stay of an earlier order
- To succeed under Rule 5(2)(b) an applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted
- An arguable appeal need not necessarily succeed; it need only be deserving of the Court's consideration
Court orders
#- 1.Stay of proceedings in ELC 33 of 2019 pending the hearing and determination of the applicant's appeal arising from the ruling of the ELC given on 22nd April 2020
- 2.The stay is conditional upon the applicant filing and serving his memorandum and record of appeal within 45 days from the date of delivery of the ruling, failing which the orders automatically stand discharged
- 3.Costs of the application to be costs in the appeal
- On appeal from
- Environment and Land Court
- ELC 33 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, "Joho v Doshi & 4 others (Civil Application 29 of 2020) [2021] KECA 137 (KLR)", Case Analysis (2021). Civil Application No. of 2020 (Mombasa) — application dated 20th May 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/137/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.