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Court of AppealPartially AllowedApplication dated March 20, 2023 (arising from ELC No E009 of 2022)· [2023] KECA 803 (KLR)

Korir v Karebe Gold Mining Ltd & 4 others (Civil Application E012 of 2023) [2023] KECA 803 (KLR)

Court of Appeal of Kenya
30 June 2023
FOF. OchiengLAL. AchodeWKW. Korir
2,712 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a contempt sentencing so the appellant can challenge the conviction first, but allowed all other case steps to continue.

What this practically means

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Executive summary

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Before the Court of Appeal at Nakuru was a rule 5(2)(b) application dated March 20, 2023 seeking to suspend a ruling of the Environment and Land Court (MN Mwanyale, J) of March 9, 2023 and stay proceedings in ELC No E009 of 2022 pending an intended appeal. The applicant, owner of Nandi/Chemase/224 and Nandi/Chemase/974, had been found in contempt of status quo orders of October 18, 2022 barring mining on the suit properties, and awaited sentencing after mitigating. He argued his liberty was at stake and that the appeal raised arguable issues: that the contempt finding rested on no proof of mining, and that the trial court wrongly declined to entertain his review application after a notice of appeal had been lodged. The respondents contended the application was speculative, that the applicant had admitted and purged the contempt, that the review order was a negative order with nothing to stay, and that sentencing should be left to the trial court. Applying the settled two-limb test - arguability and nugatorydness - the court found a single non-frivolous ground suffices and identified two such grounds resolvable only at a full hearing. It accepted that a possible jail term made the applicant's concern for his liberty legitimate, holding that the applicant has a right to appeal his conviction before being sentenced. The application was allowed only in part: sentencing was stayed, but any other proceedings were not stayed, and costs were ordered to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable: the contention that the applicant was found in contempt without proof of mining, and whether a trial court may entertain review after a notice of appeal is lodged, are not frivolous.

Reasoning

Applying Stanley Kang'ethe Kinyanjui v Tony Keter and Dennis Mogambi Mang'are, the court held an arguable ground need only raise a serious question of law or a reasonable argument, not one that must succeed. The draft memorandum raised proof-of-mining and review-after-notice-of-appeal questions that could only be resolved at a full hearing, so the threshold of an arguable appeal was met.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes, in respect of sentencing: if the applicant is jailed or fined before the appeal is heard, he would have served or partially served the sentence, rendering the appeal nugatory.

Reasoning

The applicant faced committal for up to six months following the contempt conviction and had already mitigated. Relying on Justus Kariuki Mate v Martin Nyaga Wambora and Jackson Kipkemboi Koskey, the court balanced the authority of court orders against the prospect of loss of liberty, holding that time and freedom lost cannot be recovered if the appeal later succeeds.

p. 5

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original, independent and discretionary, but must be exercised judiciously and with reason, not on impulse or pity.
  • An applicant under rule 5(2)(b) must first demonstrate an arguable appeal, then that the appeal would be rendered nugatory absent stay; a single arguable ground suffices.
  • Where a party faces a possible jail sentence for contempt, the court may stay sentencing so the applicant can exercise the right to appeal the conviction before serving sentence.

Court orders

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  1. 1.Stay of the process of sentencing following the ruling of the Environment and Land Court (MN Mwanyale, J) dated March 9, 2023
  2. 2.Refusal of stay of any other proceedings apart from sentencing in ELC No E009 of 2022
  3. 3.Costs to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (9)

  • Fatima Ali Mohamed v Harbans Singh Soor
    [2007] eKLR
  • Attorney General v Pascal Barasa Olaimo & 75 others
    [2020] eKLR
  • Jackson Kipkemboi Koskey & 7 others v Rev. Samuel Muriithi Njogu & 4 others
    [2007] eKLR
  • Justus Kariuki Mate & Another v Martin Nyaga Wambora & another
    [2014] eKLR
  • Attorney General v Okiya Omtatah Okoiti & another
    [2019] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 others
    [2013] eKLR
  • Trust Bank Limited & another v Investech Bank Limited & 3 others
    [2000] eKLR
  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR
On appeal from
Environment and Land Court
ELC No E009 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the 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, "Korir v Karebe Gold Mining Ltd & 4 others (Civil Application E012 of 2023) [2023] KECA 803 (KLR)", Case Analysis (2023). Application dated March 20, 2023 (arising from ELC No E009 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/803/eng@2023-06-30

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