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Court of AppealDismissedCivil Application E385 of 2021· [2022] KECA 966 (KLR)

PAMM & 2 others v Shoprite Checkers Kenya Limited; Attorney General (Interested Party)

Court of Appeal
26 August 2022
DMD.K. MusingaSKS. ole KantaiHOH.A. Omondi
2,545 words in judgment
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The bottom line

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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 (Musinga, ole Kantai and Omondi, JJA) dismissing a motion by Patrick Alouis Macharia Maina (PAMM) and two minors seeking stay of execution of, and stay of proceedings pursuant to, a recusal ruling of Mrima, J. dated 21 October 2021 in Constitutional Petition No. E004 of 2021, together with a temporary injunction restraining any person from publicly commenting on allegedly scandalous or prejudicial statements in that ruling or on the merits of the pending petition. The applicant argued that the recusal ruling contained a premature definitive finding of fact (adopting the phrase "soft tissue injury" from the respondent's replying affidavit), prejudicial and scandalous statements, and sub judice comments, violating his fair-hearing rights under Articles 25, 47(1), 48 and 50(1). At the hearing the applicant abandoned prayers 2(a) and 2(b) as compromised; the respondent filed no response, questioning why the applicant sought to stay his own petition. Applying the twin test in Stanley Kangethe Kinyanjui v Tony Ketter, the Court found no arguable point in the intended appeal and declined to consider nugatory-ness. It found incoherent the applicant's position of seeking to stay a recusal order he himself had requested and obtained, and held that the injunction against the media could not issue since the media were not parties and had no notice of adverse orders. The Motion was dismissed with costs in the appeal.

Key legal issues

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01

Whether the intended appeal against the recusal ruling is arguable

Holding

The Court found no arguable point in the intended appeal and dismissed the Motion without considering nugatory-ness.

Reasoning

The Court applied the twin principles in Stanley Kangethe Kinyanjui v Tony Ketter. It observed that the applicant had himself sought and obtained the recusal order, making it impossible to appreciate how its implementation could prejudice him. Finding no arguable point, the Court held it need not consider whether the appeal would be rendered nugatory, and dismissed the Motion.

p. 6
02

Whether an injunction against the media could issue

Holding

No injunction against the media could issue because they were not parties and had no notice of the adverse orders sought against them.

Reasoning

The Court noted the media were not parties to the High Court petition or the appeal and had no notice that adverse orders were being sought against them, so the request to gag media reporting was not a matter for consideration.

p. 6

Legal principles established

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  • An applicant for stay of execution pending appeal or an injunction against High Court orders must establish an arguable (not frivolous) appeal and that the appeal would be rendered nugatory absent stay.

Court orders

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  1. 1.The Motion is dismissed
  2. 2.Costs will be in the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 4
  • Court of Appeal Rules, 2010rule 41
  • Court of Appeal Rules, 2010rule 47(1)
  • Court of Appeal Rules, 2010rule 49(1)
  • Court of Appeal Rules, 2010rule 77(1)
  • Court of Appeal Rules, 2010rule 52(b)
  • Court of Appeal Rules, 2010rule 82(1)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 33(3)
  • Constitution of Kenya, 2010Article 19(3)
  • Constitution of Kenya, 2010Article 20(2)
  • Constitution of Kenya, 2010Article 21(1)
  • Appellate Jurisdiction Act

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR

    Twin test for stay pending appeal: arguable appeal and nugatory-ness.

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2013] eKLR

    Cited by the applicant for recusal principles, per concurring decision of M.K. Ibrahim SCJ.

  • Johnson Otieno Adera v South Nyanza Sugar Co Ltd
    [2020] eKLR

    Cited by the applicant as a decision in which Mrima, J. recused himself.

On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. E004 of 2021
Jurisdiction invoked
Rules 4, 41, 47(1), 49(1), 77(1) and 52(b) of the Court of Appeal Rules, 2010; articles of the Constitution of Kenya, 2010; Appellate Jurisdiction Act

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, "PAMM & 2 others v Shoprite Checkers Kenya Limited; Attorney General (Interested Party)", Case Analysis (2022). Civil Application E385 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/966/eng@2022-08-26

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