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Court of AppealDismissedCivil Application E195 of 2021· [2022] KECA 430 (KLR)

Cyprian Nyakundi v Standard Group PLC & another

Court of Appeal
4 March 2022
1,279 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause contempt sentencing against blogger Cyprian Nyakundi because no sentence had been passed yet, making his stay application premature.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'Inoti, Ole Kantai and Mohammed, JJA) on Cyprian Nyakundi's motion under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution and further proceedings pending an intended appeal against a High Court ruling (Mbogholi, J., dated 27 May 2021 in HCCC 71 of 2020) finding him guilty of contempt for breaching interlocutory injunctions obtained by Standard Group PLC and Orlando Lyomu in a defamation suit, and directing him to appear for mitigation and sentence. The applicant argued his appeal was arguable on service of the injunction order by email, the respondents' authority to sue, and the legal status of section 5 of the Judicature Act after the Contempt of Court Act 2016 was declared unconstitutional; and that any imprisonment would render the appeal nugatory. The court found the intended appeal arguable, satisfying the first limb, but held the applicant failed the nugatory limb: he assumed committal to jail, yet the High Court had not sentenced him, must first hear mitigation, and could impose lesser punishment or discharge him. The application was dismissed with costs. The decision binds subordinate courts and the High Court on the twin rule 5(2)(b) tests, and clarifies that stay applications premised on unpassed sentences are premature and speculative.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not frivolous and was arguable, satisfying the first limb of rule 5(2)(b).

Reasoning

Both parties had presented prima facie plausible arguments on service of the injunction order, authority to sue, and the legal status of section 5 of the Judicature Act following the Contempt of Court Act's invalidation. The court stressed it could not at that stage determine which position would prevail; that is for the full appeal hearing.

p. 2
02

Whether the intended appeal would be rendered nugatory

Holding

The nugatory limb failed because the applicant assumed committal to jail, yet the High Court had not sentenced him and could impose lesser or no punishment after hearing mitigation.

Reasoning

The applicant argued only that imprisonment would render the appeal nugatory and did not suggest other punishments would have that effect. The High Court is not bound by the respondents' request for jail or attachment; it must hear mitigation, and may discharge the applicant conditionally or unconditionally. Second-guessing an unmade sentencing decision would be speculative.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory limbs; failure of either is fatal to the application.
  • Where a contempt finding has been made but sentence has not been passed, an application for stay premised on anticipated imprisonment is premature and speculative; the applicant may approach the court if actually committed.

Court orders

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  1. 1.Application for stay of execution and further proceedings pending appeal dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Judicature Actsection 5
  • Contempt of Court Act

Cases cited (7)

  • Philip J. Mainga v. Proscovia Vitsengwa & 4 Others
    [2020] eKLR

    Nugatory-ness where liberty is in jeopardy

  • United Insurance Co. Ltd. v. Stephen Ngare Nyamboki
    CA. No. Nai 295 of 2001

    Nugatory-ness principle

  • Dr Christopher Ndarathi Murungaru v. KACC & Another
    (2006) KLR 77

    Nugatory-ness principle

  • Rev. Jackson Kipkemboi Koskey & 7 Others v. Rev Samuel Muriithi Njogu & 4 Others
    CA. No. Nai 311 of 2006

    Nugatory-ness principle

  • Shimmers Plaza Ltd v. National Bank of Kenya Ltd
    (2015) eKLR

    Standard of proof of service in contempt proceedings

  • Wardpa Holdings Ltd & Others v. Emmanuel Waweru Lima Mathai & Another
    CA. No. Nai. 351 of 2009

    Speculative nugatory-ness claims

  • Republic v. Director of Lands and Urban Planning, Government of Makueni County Ex parte Edward Mutinda & 15 Others
    [2015] eKLR

    Nugatory-ness where sentence not yet passed

On appeal from
High Court at Nairobi
HCCC 71 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, "Cyprian Nyakundi v Standard Group PLC & another", Case Analysis (2022). Civil Application E195 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/430/eng@2022-03-04

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