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Court of AppealDismissedNotice of Motion dated 7th February 2024 (Court of Appeal, Nairobi)

County Secretary, Nairobi City County & another v Tom Ojienda & Associates (Civil Application E052 of 2024) [2024] KECA 767 (KLR)

Court of Appeal of Kenya
5 July 2024
2,939 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause contempt sentencing proceedings against Nairobi County officials, ruling that a dismissal of an instalment payment proposal cannot be stayed.

What this practically means

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Executive summary

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The County Secretary and the Chief Officer Finance of Nairobi City County sought a stay of proceedings in Nairobi HCJR 123 of 2017 pending an intended appeal against a ruling of the High Court (Chigiti J) delivered on 20th December 2023 dismissing their application to pay the decretal sum of Kshs 133,202,739.72 owing to Prof. Tom Ojienda in instalments. The applicants, who had replaced the officers originally cited for contempt under a judgment of 10th March 2022, feared sentencing and committal to civil jail. The respondent opposed, contending that the Court lacked jurisdiction for want of leave, that the draft memorandum raised grounds outside the impugned ruling, that the ruling was a negative order incapable of being stayed, and that no nugatory prejudice was shown. The Court (Kiage, Nyamweya and Gachoka JJA) rejected the jurisdictional objection because leave was granted after delivery of the ruling. Applying the settled Rule 5(2)(b) test from Stanley Kang'ethe Kinyanjui vs Tony Ketter, it accepted, given the low arguability threshold, that one triable issue existed as to whether the trial Judge considered relevant factors. However, it found the nugatory test unsatisfied on two grounds: the impugned ruling was a negative order which did not require any party to do or refrain from anything and thus could not be stayed; and the sentencing proceedings flowed from the contempt ruling of 10th March 2022, which was not appealed and was not the subject of the application. The application was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction for want of leave to appeal

Holding

The objection failed because leave to appeal was granted after delivery of the ruling, so the application was properly before the Court

Reasoning

The respondent raised a preliminary issue that the Court lacked jurisdiction because the applicants had not obtained leave to appeal the ruling of 20th December 2023. Counsel for the applicants pointed out that leave was granted after delivery of the ruling, as evidenced by an order on the record. The Court was satisfied on that basis that the application was properly before it and proceeded to the substantive merits.

p. 4
02

Arguability of the intended appeal

Holding

Despite grounds that strayed into the contempt proceedings not under appeal, the low threshold for arguability was met on the question whether the trial Judge considered relevant factors in declining instalment payments

Reasoning

The Court reproduced the eight grounds of appeal verbatim, noted that several related to the contempt proceedings which were not the subject of the impugned ruling, but applied the low threshold for arguability. It accepted that there may be a triable issue as to whether the trial Judge took relevant factors into account in dismissing the instalment proposal.

p. 5
03

Nugatory test and stay of a negative order

Holding

The appeal would not be rendered nugatory because the impugned order was a negative order incapable of being stayed, and the sentencing proceedings stem from an unappealed contempt ruling

Reasoning

The Court found two independent reasons why the nugatory test failed. First, the ruling of 20th December 2023 merely dismissed the instalment proposal without ordering any party to do or refrain from doing anything, making it incapable of being stayed. Second, the sentencing proceedings arose from the contempt judgment of 10th March 2022, which was not the subject of the application or the ruling appealed against, and could not therefore be stayed in this application.

p. 5

Legal principles established

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  • An arguable appeal need not be one that would succeed; it suffices that it is not frivolous and raises at least one triable issue
  • A negative order, which does not require any party to do or refrain from doing anything, is incapable of being stayed
  • Sentencing proceedings flowing from a contempt ruling not appealed against cannot be stayed in an application seeking stay pending an appeal against a different ruling

Court orders

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  1. 1.Dismissal of the Notice of Motion application dated 7th February 2024 seeking a stay of proceedings in Nairobi HCJR 123 of 2017
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya at Nairobi
HCJR 123 of 2017 - Prof. Tom Ojienda vs The County Secretary, Nairobi City County and Another
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2022 (stay of proceedings pending appeal)

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, "County Secretary, Nairobi City County & another v Tom Ojienda & Associates (Civil Application E052 of 2024) [2024] KECA 767 (KLR)", Case Analysis (2024). Notice of Motion dated 7th February 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/767/eng@2024-07-05

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