Cmm v Gdm
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; no single arguable point could be discerned from the material placed before the Court
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.
Nugatory aspect of the appeal
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the application for stay of execution
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.