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Court of AppealAllowedCivil Application No. E037 of 2023 (motion dated 31st October 2023)

National Cohesion & Integration Commission & 6 others v Mbugua (Civil Application E095 of 2023) [2024] KECA 654 (KLR)

Court of Appeal of Kenya
7 June 2024
FSF. SICHALEFOF. OCHIENGWKW. KORIR
2,138 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a contempt ruling against NCIC commissioners, holding that imminent imprisonment makes an appeal worth hearing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Sichale, Ochieng and Korir, JJA) on a motion dated 31st October 2023 by the National Cohesion and Integration Commission, its Chairperson Rev Dr Samuel Kobia and five other commissioners seeking stay of execution of a ruling of the Employment and Labour Relations Court at Nakuru delivered on 5th October 2023. That ruling had found the applicants guilty of contempt of court for allegedly violating interlocutory orders of 20th February 2023 issued in the respondent's judicial review proceedings, which barred the Commission from taking further disciplinary action against her pending determination. The applicants, facing sentencing scheduled for 26th October 2023, sought stay pending an intended appeal, invoking Rule 5(2)(b) of the Court of Appeal Rules, 2022. The respondent opposed, arguing the appeal was not arguable and that the appeal would not be rendered nugatory since sentencing had not occurred. Applying the twin principles summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court found a single bona fide arguable ground suffices and identified arguable issues on the scope of the dispute before the trial judge, whether the interlocutory orders conferred immunity for future misconduct, and deliberate disobedience of court orders. On the second limb, it held that the applicants faced imminent risk of imprisonment and irreversible penal consequences, and that the substratum of the intended appeal would be lost without a stay. The motion was allowed; execution of the 5th October 2023 ruling was stayed pending the intended appeal, with costs of the motion to abide its outcome. This decision binds subordinate courts and the Employment and Labour Relations Court as to the Rule 5(2)(b) principles applied.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found the draft memorandum raised bona fide issues - the scope of the dispute before the trial judge, whether the interlocutory orders conferred immunity against future misconduct, and whether there was deliberate disobedience of court orders - warranting full consideration.

Reasoning

The Court applied the settled Rule 5(2)(b) test: an arguable appeal is one that is not frivolous and need not necessarily succeed. Examining the draft memorandum, it identified grounds concerning the scope of the show-cause letter and interlocutory orders and deliberate disobedience, which it found worthy of full argument, while declining to make definitive findings lest it embarrass the appellate bench.

p. 5
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

The applicants, having been found guilty of contempt and awaiting sentencing, faced imminent risk of imprisonment and other irreversible penal consequences; the substratum of the appeal would be lost if stay was refused.

Reasoning

It was common ground that the applicants had already been found guilty of contempt and were awaiting sentencing. The Court reasoned that imprisonment and other penal consequences are irreversible - the applicants would lose their right to liberty and the substratum of the appeal - so the nugatory limb was satisfied and stay was merited.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the Court on both limbs - an arguable appeal and that the appeal will be rendered nugatory - and the discretion is wide and unfettered provided it is just to do so.
  • An arguable appeal need not necessarily succeed; a single bona fide arguable ground suffices.

Court orders

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  1. 1.Stay of the execution/implementation of the ruling and orders delivered by the Employment and Labour Relations Court in Nakuru on 5th October 2023, pending the hearing and determination of the applicants' intended appeal
  2. 2.Costs of the motion to abide the outcome of the intended appeal
On appeal from
Employment and Labour Relations Court, Nakuru
Jurisdiction invoked
Article 50(2)(q) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Section 5 of the Judicature Act; Rule 5(2)(b) of the Court of Appeal Rules, 2022

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, "National Cohesion & Integration Commission & 6 others v Mbugua (Civil Application E095 of 2023) [2024] KECA 654 (KLR)", Case Analysis (2024). Civil Application No. E037 of 2023 (motion dated 31st October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/654/eng@2024-06-07

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