Mohamed Bulle v Richard Kipkoech Aiyabei & 7 others
The bottom line
#Kenya's Court of Appeal halted contempt proceedings that could jail Mohamed Bulle, confirming courts will preserve liberty while an appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
All fifteen grounds in the memorandum of appeal are arguable; it is sufficient that a single bona fide arguable ground is raised.
The Court applied the settled Rule 5(2)(b) standard that an arguable appeal is one that is not frivolous and ought to be argued fully, whether or not it ultimately succeeds. Nothing in the 1st respondent's opposing documents suggested the grounds were not bona fide arguable issues, as they were anchored on the factual background of the contempt orders.
Whether the appeal would be rendered nugatory absent stay
The second prerequisite was satisfied because the threatened action was committal to civil jail, and loss of liberty through execution of a committal order is irreversible.
The Court noted each case must be considered on its own facts and that the inquiry turns on whether what is sought to be stayed is reversible or compensable in damages. Since a committal order would deprive the applicant of liberty irreversibly, damages could not be an adequate remedy, so stay was warranted.
Legal principles established
#- An applicant for relief under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, unless stay is granted, the appeal will be rendered nugatory.
- An arguable appeal need not be one that will succeed; it suffices that a single bona fide arguable ground is raised.
- On the nugatory prong, where the threatened action is committal to civil jail, execution of a committal order is irreversible and damages cannot compensate for loss of liberty.
- A Court hearing a Rule 5(2)(b) application must not make definitive or final findings of fact or law at that stage.
Court orders
#- 1.Further proceedings in Employment and Labour Relations Petition No. 46 of 2020 stayed pending the hearing and determination of the appeal from the ruling and orders made on 16th July 2020
- 2.Execution of the ruling and orders of the Employment and Labour Relations Court delivered on 16th July 2020 stayed pending the hearing and determination of the appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 46 of 2020
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Bulle v Richard Kipkoech Aiyabei & 7 others", Case Analysis (2021). Civil Appeal (Application) No. 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1039/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.