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Court of AppealDismissedCivil Application (Rule 5(2)(b) motion dated 9th June 2021) arising from intended appeal against Nairobi High Court Family Misc. 52 of 2020· [2021] KECA 208 (KLR)

Githunguri v Githunguri & 3 others (Civil Application E197 of 2020) [2021] KECA 208 (KLR)

Court of Appeal
5 November 2021
ASAsike-MakhandiaJMJ. MohammedSKS. ole Kantai
2,260 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 refused to pause Mental Health Act guardianship proceedings because the disputed order had already changed, even though the intended appeal was arguable.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) application before the Court of Appeal in Nairobi, in which Stanley Munga Githunguri sought a stay of execution of, and a stay of proceedings pursuant to, orders made on 4th June 2021 in Nairobi High Court Family Misc. 52 of 2020, a petition under the Mental Health Act in which his children sought a declaration that he suffers from dementia and requires guardianship. The High Court had directed him to appear for examination and, as the applicant contended, found him in contempt without any application or charge. The applicant, supported by his daughter's affidavit, argued that the intended appeal was arguable on questions including whether Mental Health Act proceedings are civil rather than quasi-criminal, whether contempt could be found without an application or proof of service, and whether the court had jurisdiction to determine dementia. The respondents opposed, contending the application was overtaken by events because the applicant had already been presented virtually before the High Court. Applying the twin principles from Trust Bank v Investech and Stanley Kang'ethe Kinyanjui v Tony Ketter, the court found the appeal arguable but held the nugatory limb failed: the impugned order had been overtaken by events and the High Court had varied its order so that the applicant would be presented at his residence. The application was dismissed, with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes. It is arguable whether proceedings under the Mental Health Act are civil rather than criminal or quasi-criminal such as to necessitate warrants of arrest.

Reasoning

The court applied the settled principle from Trust Bank v Investech and Kang'ethe Kinyanjui that only a single bona fide arguable ground is needed. It found the question of the civil character of Mental Health Act proceedings and the issuance of warrants sufficient, without making definitive findings to avoid embarrassing the bench hearing the main appeal.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

No. The impugned order had been overtaken by events and the High Court varied its order so that the applicant would be presented at his residence, with no indication of arrest.

Reasoning

The court weighed the competing claims on the merits and noted that the applicant had already been presented virtually to the High Court on 11th June 2021, that connectivity challenges prevented the intended examination, and that on 17th June 2021 the High Court ordered presentation at the applicant's residence on 23rd June 2021 without any order for arrest. The second limb therefore failed.

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory absent stay; failure on either limb is fatal.
  • An arguable appeal need not succeed; it is one which is not frivolous and deserves full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
  • In assessing nugatory-ness the court weighs the conflicting claims of both parties on their merits, considering whether what is sought to be stayed is reversible or compensable in damages.

Court orders

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  1. 1.The application dated 9th June 2021 is dismissed
  2. 2.Costs shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1) and (2)(h)
  • Court of Appeal RulesRule 5(2)(b)
  • Mental Health ActSections 26, 27, 28(1) & (2)

Cases cited (2)

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR (Civil Application Nai. 258 of 1999)
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR (Civil Application No. Nai. 31 of 2012)
On appeal from
High Court
Family Misc. 52 of 2020 (Nairobi); also referred to as High Court Petition No. 52 of 2020
Jurisdiction invoked
Rule 5(2)(b) 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, "Githunguri v Githunguri & 3 others (Civil Application E197 of 2020) [2021] KECA 208 (KLR)", Case Analysis (2021). Civil Application (Rule 5(2)(b) motion dated 9th June 2021) arising from intended appeal against Nairobi High Court Family Misc. 52 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/208/eng@2021-11-05

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