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ELCAllowedApplication dated 1st November 2017 in the Petition· [2017] KEELC 427 (KLR)

Siokwet Tarita Limited v Commission for University Education & another [2017] KEELC 427 (KLR)

High Court of Kenya
22 November 2017
AOA. Ombwayo
2,946 words in judgment
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The bottom line

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The High Court paused proceedings against Kisii University officials found in contempt, allowing their appeal to be heard first—but only for 60 days.

What this practically means

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Executive summary

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Kisii University, Prof. John S. Akama and Dr. Kibiyegon Kirui (1st and 2nd contemnors) applied by notice dated 1st November 2017 for a stay of proceedings and of orders issued on 14.12.2016 and 26.9.2017, and of the hearing of a contempt application dated 31.08.2017, pending an appeal to the Court of Appeal against a finding that they were in contempt of injunctive orders made on 14.12.2016 (which required the University to pay rent). They contended the 2nd Respondent was not served or represented when the orders issued, that the appeal was arguable, and that a continuing-contempt application scheduled for 23.11.2017 was founded on the first contempt finding, so proceeding would render the appeal nugatory. The petitioner opposed, arguing contemnors have no audience until they purge their contempt and that the application was an abuse of process designed to undo consent directions. Counsel for both parties had framed the application under Order 42 rule 6(2). The court held that Order 42 rule 6(2) applies only to stay of execution, not stay of proceedings, and adopted the Global Tours & Travels interest-of-justice test. It found the appeal arguable on service and representation, held that whether a contemnor may be heard is discretionary (Rose Detho; Schilling), subject to the general rule and the Hadkinson exception, and concluded that refusing audience would deny the applicants the right to be heard. The application was allowed: proceedings and the specified orders and application were stayed pending the appeal, limited to 60 days subject to review, with costs in the cause.

Key legal issues

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01

Applicability of Order 42 rule 6(2) to stay of proceedings

Holding

The rule applies only to stay of execution, not stay of proceedings; both counsel laboured under a mistaken belief that it did.

Reasoning

The court analysed Order 42 rule 6 and found its conditions (substantial loss, no unreasonable delay, security) are framed for stay of execution of a decree or order pending appeal. Stay of proceedings is not covered; the court must instead be guided by wider considerations of justice, drawing on the Global Tours & Travels principles.

p. 4
02

Right of audience of a contemnor pending appeal

Holding

Whether to hear a contemnor is discretionary, but refusing audience to applicants awaiting appeal on a contempt finding would deny them the right to be heard.

Reasoning

Relying on Rose Detho and Joseph Schilling, the court held the question is discretionary; the general rule is no audience until contempt is purged, subject to the Hadkinson exception. Since the applicants' appeal raises arguable issues on service and contempt, and the continuing-contempt application depends on the first finding, proceeding would be prejudicial; the applicants are entitled to be heard on appeal.

p. 5

Legal principles established

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  • Order 42 rule 6(2) of the Civil Procedure Rules governs stay of execution of a decree or order, not stay of proceedings; stay of proceedings is governed by the court's discretion exercised in the interest of justice.
  • Whether to stay proceedings pending appeal is a matter of judicial discretion weighing expeditious disposal, arguability of the intended appeal, judicial time and expeditiousness of the application.
  • The general rule is that a contemnor is not heard until he purges the contempt, but whether to hear a contemnor is a discretionary exception per Hadkinson.

Court orders

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  1. 1.Stay of proceedings and/or further proceedings and/or orders issued on 14.12.2016, 26.9.2017 and the hearing of the application dated 31.08.2017 and any other action pending hearing and determination of the appeal to the Court of Appeal
  2. 2.The stay is limited to 60 days only, subject to review
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47 and 50
  • Civil Procedure RulesOrder 42 rule 6 (and rule 6(2))

Cases cited (5)

  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Rose Detho v Ratilal Automobiles Ltd & 6 Others
    [2007] eKLR
  • Joseph Schilling and two others v Stardust Investments Limited and another
    Civil Appeal No. 134 of 1997
  • Commercial Bank of Africa Limited v Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991
  • Hadkinson v Hadkinson
    [1952] 2 ALL ER 567
Jurisdiction invoked
Inherent discretion of the trial court to stay proceedings pending appeal, in the interest of justice; Articles 47 and 50 of the Constitution of Kenya, 2010 invoked by applicants

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Siokwet Tarita Limited v Commission for University Education & another [2017] KEELC 427 (KLR)", Case Analysis (2017). Application dated 1st November 2017 in the Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/427/eng@2017-11-22

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