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Court of AppealDismissedCivil Application No. 6 of 2020 (UR 3/2020)· [2021] KECA 736 (KLR)

Cmm v Gdm

Court of Appeal
19 March 2021
1,371 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a maintenance and property order, ruling the husband couldn't benefit from ignoring court orders he disagreed with.

What this practically means

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Executive summary

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CMM applied to the Court of Appeal at Nyeri under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling by A. Ong'injo, J in Divorce Cause No. 1 of 2019 at Meru. The High Court had granted protective orders over matrimonial property and awarded GDM monthly maintenance of Ksh. 150,000/= pending determination of the divorce, together with an order to remove furniture of her choice from the matrimonial home. CMM appealed and simultaneously sought a stay. The respondent opposed, pointing out that after consenting to pay Ksh. 130,000/= monthly, the applicant paid only once, refused to honour court summons, and faced warrants of arrest for disobedience of valid orders. The Court applied the settled twin principles for Rule 5(2)(b) applications: the applicant must show the appeal is arguable and that it will be rendered nugatory if stay is refused. The Court found no single arguable point; the issues CMM sought to raise, including the alleged failure to consider Article 45(3) on equality of rights in marriage, had not been determined by the High Court. On nugatory aspect, the applicant's impecunity and risk of civil jail were held to be circumstances of his own creation. The application was dismissed with costs to the respondent. The ruling binds lower courts on the twin Rule 5(2)(b) principles and confirms that self-created prejudice cannot ground a stay.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable; no single arguable point could be discerned from the material placed before the Court

Reasoning

The Court scrutinised the applicant's grounds, chiefly the alleged failure to apply Article 45(3) of the Constitution on equality of rights in marriage, and found none raised a point arguable before the Court. The issues the applicant sought to raise had not even been determined by the High Court, as the divorce petition remained unheard, leaving nothing for the appellate court to assess.

p. 2
02

Nugatory aspect of the appeal

Holding

The applicant failed to show the appeal would be rendered nugatory without a stay; his alleged impecunity and fear of civil jail were self-created

Reasoning

Even assuming arguability, the applicant did not demonstrate how the appeal would be rendered nugatory if it succeeded. He had consented to pay Ksh. 130,000/= monthly maintenance but defaulted after one payment, prompting warrants of arrest. The Court held that a litigant cannot rely on prejudice flowing from his own disobedience of valid court orders to obtain a stay of execution.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) of the Court of Appeal Rules must demonstrate both that the appeal is arguable and that it will be rendered nugatory if the orders sought are not granted
  • A party who creates the circumstances of alleged nugatory prejudice cannot rely on them; self-created impecunity and disobedience of court orders do not found a claim that an appeal will be rendered nugatory

Court orders

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  1. 1.Dismissal of the application for stay of execution
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya at Meru
Divorce Cause No. 1 of 2019
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and 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, "Cmm v Gdm", Case Analysis (2021). Civil Application No. 6 of 2020 (UR 3/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/736/eng@2021-03-19

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