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Court of AppealAllowedCivil Application E020 of 2022· [2022] KECA 1116 (KLR)

Odera & 2 others v Omboto & 4 others

Court of Appeal
7 October 2022
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a contempt sentence, confirming that jailing someone who might win an appeal would cause harm that can never be undone.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) on an application under Rules 5(2), 75(1), 42 and 47 of the Court of Appeal Rules and Article 159 of the Constitution for stay of execution of a contempt ruling of the Environment and Land Court at Kisumu (Ombwayo, J) dated 10th December 2021 in Petition No. 8 of 2019. The ELC had found the 1st applicant, Captain Jotham Odera, in contempt of an order of 18th March 2021 restraining the applicants from evicting the 1st and 2nd respondents or taking possession of the suit property, and committed him to 30 days' imprisonment with an option of a fine of Kshs 200,000. The applicants contended that the 1st applicant was a public officer providing security on behalf of Kenya Railways and was not in possession of the property. Applying the settled twin principles under Rule 5(2)(b) - arguable appeal and nugatory value - the court found the grounds of appeal arguable, particularly whether a non-party providing security could be held liable in contempt, and held that incarceration could not be undone if the appeal succeeded. Relying on its earlier decision in Kabale Tache Arero, the court granted the stay of execution pending hearing and determination of the appeal, with costs of the application to abide the appeal's determination. The ruling does not disturb the ELC decision itself; that remains for the full appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds of appeal, including whether a non-party providing security could be held in contempt, demonstrated an arguable appeal.

Reasoning

The memorandum of appeal raised four grounds, including whether the 1st applicant, who was not a party to the ELC proceedings and was providing security for the 3rd respondent, could be held liable in contempt, and whether the court failed to consider changed circumstances between judgment and the stay order. The court found these were not frivolous points requiring the appeal court's attention.

p. 3
02

Nugatory value of the appeal

Holding

Because the contempt orders required a fine of Kshs 200,000 or incarceration, and incarceration cannot be undone, the appeal would be rendered nugatory if the stay were refused.

Reasoning

The court reasoned that the orders under appeal require payment of a fine or imprisonment of the 1st applicant. If he were arrested and incarcerated and the appeal later succeeded, the incarceration could not be undone, rendering the appeal nugatory. The court applied its earlier decision in Kabale Tache Arero where similar liberty-based nugatory grounds were accepted.

p. 3

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must satisfy the twin conditions of an arguable appeal and that the appeal will be rendered nugatory unless the stay is granted.
  • The intended appeal need not be one that will necessarily succeed; it need only not be frivolous.
  • Where the orders under appeal require payment of a fine or incarceration, and incarceration cannot be undone if the appeal succeeds, the nugatory limb is satisfied.

Court orders

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  1. 1.An order staying execution of the ruling dated December 10, 2021 and the orders issued on December 14, 2021 by Ombwayo J pending the hearing and determination of the applicants' appeal
  2. 2.Costs of the application to abide the determination of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)
  • Court of Appeal RulesRule 75(1)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 47
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Global Tours & Travels Limited Nairobi HC Winding Up Case No. 43 of 2000
  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    (2013) eKLR

    Twin principles for grant of stay under Rule 5(2)(b): arguable appeal and nugatory value.

  • Kabale Tache Arero v Salome Munubi & 3 others; Muhammad Swazuri Chairman National Land Commission & another (Interested Parties)
    (2020) eKLR

    Stay granted where arguability raised as to orders against a non-party and incarceration could not be undone.

On appeal from
Environment and Land Court of Kenya at Kisumu
Petition No. 8 of 2019
Jurisdiction invoked
Rules 5(2), 75(1), 42 and 47 of the Court of Appeal Rules and Article 159 of the Constitution of Kenya

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, "Odera & 2 others v Omboto & 4 others", Case Analysis (2022). Civil Application E020 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1116/eng@2022-10-07

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