County Secretary, Nairobi City County & another v Tom Ojienda & Associates (Civil Application E052 of 2024) [2024] KECA 767 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction for want of leave to appeal
The objection failed because leave to appeal was granted after delivery of the ruling, so the application was properly before the Court
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.
Arguability of the intended appeal
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
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.
Nugatory test and stay of a negative order
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion application dated 7th February 2024 seeking a stay of proceedings in Nairobi HCJR 123 of 2017
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.