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Court of AppealPartially AllowedCivil Application No. E186 of 2023 (with Civil Application No. E187 of 2023)· [2023] KECA 1259 (KLR)

Sarrai Group Ltd v Kimeto & Associates Advocates & 11 others (Civil Application E185 of 2023) [2023] KECA 1259 (KLR)

Court of Appeal
13 October 2023
3,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal halted contempt-of-court proceedings against Sarrai Group executives pending appeal, and rejected a bid to disqualify its judges as 'fanciful.'

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 (Warsame, M'inoti and Laibuta, JJ.A.) on a notice of motion dated 10th May 2023 by Sarrai Group Ltd seeking stay of execution of a High Court contempt ruling of 27th April 2023 by Chepkwony, J., and stay of further proceedings, pending an intended appeal. The ruling had convicted Sarrai and three individuals of contempt of the conservatory orders of 28th July 2022 issued by Okwany, J. in the Mumias Sugar receivership litigation, fined Sarrai Kshs.100,000 and directed the individuals to show cause against imprisonment. A companion application, Civil Application No. E187 of 2023 by the three individuals, was treated identically. The Court first dismissed, with costs, a recusal application premised on the presiding judge's JSC membership and the empanelling of the bench by an acting President of the Court, reaffirming the objective 'reasonable apprehension of bias' test, its high threshold, and the rule that JSC membership does not bar a judge from sitting. On the merits, applying the two-limb rule 5(2)(b) test, the Court held the intended appeal arguable on whether the contempt orders conflicted with this Court's earlier stay orders and on allegations of conviction without service and hearing; and held the appeal potentially nugatory because incarceration, if the appeal succeeded, could not be reversed or compensated. The Court allowed the application, staying execution of the ruling and further proceedings pending the appeal, applying the decision mutatis mutandis to E187 of 2023. The decision below was not itself reversed; what binds lower courts is the recusal standard and the rule 5(2)(b) analysis on liberty.

Key legal issues

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01

Test for recusal on the ground of perceived bias

Holding

The objective test of reasonable apprehension of bias applies; the threshold is high and a bare allegation does not compel recusal. A JSC-member judge and a bench empanelled by the President may still sit.

Reasoning

The Court applied Kalpana H. Rawal and the EACJ formulation in Anyang' Nyong'o, requiring that a reasonable, fair-minded and informed member of the public would apprehend that the judge will not apply his mind impartially. It held that judges do not empanel themselves and that the President's role in empanelling confers no sway over judicial decision-making, so the apprehension propounded was fanciful.

p. 5
02

Arguability of the intended appeal

Holding

The appeal was arguable: whether the contempt orders conflicted with this Court's stay of execution, and whether contemnors were convicted without service and a hearing, are bona fide issues.

Reasoning

An arguable appeal need not succeed; it suffices that it is not frivolous and raises a bona fide point. The Court found the questions of conflict between High Court contempt orders and this Court's stay orders, and of conviction without service in breach of Article 50, non-frivolous and deserving of full ventilation.

p. 7
03

Whether the appeal would be rendered nugatory

Holding

Yes: incarceration for contempt cannot be undone or compensated in damages if the appeal succeeds.

Reasoning

Relying on Reliance Bank and Stanley Kangethe Kinyanjui, the Court held that what renders an appeal nugatory depends on the circumstances of the case. Because what is at stake is the applicants' personal liberty, the consequences of committal are irreversible, satisfying the second limb of rule 5(2)(b).

p. 7

Legal principles established

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  • A judge does not recuse himself merely because a party requests it; the objective test of reasonable apprehension of bias applies and the threshold is high, the onus lying on the party alleging bias.
  • Judges who represent their courts in the Judicial Service Commission are not thereby precluded from discharging judicial duties.
  • A judge would be wrong to recuse himself on spurious grounds, just as he would be wrong to refuse to recuse where real likelihood of bias is proved.
  • Both limbs of the rule 5(2)(b) test - arguability and nugatory-ness - must be satisfied; satisfying only one is not enough.
  • Where committal to jail for contempt is at stake, loss of liberty cannot be adequately compensated in monetary terms and the appeal may be rendered nugatory.

Court orders

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  1. 1.Stay of execution of the ruling and order of the High Court dated 27th April 2023 pending the hearing and determination of the applicant's appeal
  2. 2.Stay of further proceedings in the trial court pending the hearing and determination of the applicant's appeal
  3. 3.The ruling to apply mutatis mutandis to Civil Application No. E187 of 2023
On appeal from
High Court of Kenya
not stated (contempt ruling of Chepkwony, J.)
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, "Sarrai Group Ltd v Kimeto & Associates Advocates & 11 others (Civil Application E185 of 2023) [2023] KECA 1259 (KLR)", Case Analysis (2023). Civil Application No. E186 of 2023 (with Civil Application No. E187 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1259/eng@2023-10-13

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