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ELCAllowedApplication dated 5 September 2018, filed 7 September 2018· [2018] KEELC 841 (KLR)

African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2018] KEELC 841 (KLR)

Environment and Land Court
4 October 2018
MSMUNYAO SILA
1,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused the sentencing of Nakuru County officials found in contempt, so they can appeal first without risking jail.

What this practically means

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Executive summary

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This was an application dated 5 September 2018 seeking a stay of a sentencing hearing pending appeal, brought under Section 33(3) of the Contempt of Court Act and Sections 1A, 1B and 3A of the Civil Procedure Act. The underlying petition, heard by the Environment and Land Court at Nakuru, concerned the alleged illegal conversion of land parcel Naivasha/Maraigushu/Block11/4(Karai) into a dumpsite, in breach of the petitioners' right to a clean and healthy environment. Judgment delivered on 31 May 2017 allowed the petition and declared the dumpsite's operation illegal. The petitioners then applied, by an application dated 23 October 2017, to have the Governor of Nakuru County, the County Executive Officer and the Chief Officer in charge of Environment cited for contempt. In a ruling delivered on 11 July 2018, the court held the Governor and the County Executive Officer in contempt and fixed a sentencing hearing for 27 September 2018. The applicants filed a Notice of Appeal against that ruling and sought a stay of the sentencing hearing, arguing the appeal would otherwise be rendered nugatory. The petitioners opposed, contending the applicants had not purged the contempt and had not demonstrated an arguable appeal. The court, while observing that the applicants' conduct did not warrant reprieve, held it could not curtail their right of appeal. Guided by Supreme Court and Court of Appeal precedent, it found that a sentence involving loss of liberty would render the appeal nugatory. The application was allowed, the sentencing hearing stayed pending the appeal, and costs were made costs in the appeal.

Key legal issues

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Whether a stay of the contempt sentencing hearing should be granted pending appeal

Holding

Application allowed; sentencing hearing stayed pending determination of the applicants' appeal against the contempt ruling

Reasoning

The court noted the applicants had filed a Notice of Appeal and it was not for the court to curtail their right of appeal. Although the court observed that the applicants' conduct did not warrant reprieve, precedent from the Supreme Court and Court of Appeal showed courts favour staying sentencing hearings pending appeal where the sentence may involve loss of liberty, which would render the appeal nugatory and incapable of remedy by costs.

p. 2

Legal principles established

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  • Courts are inclined to stay sentencing proceedings pending an appeal against a contempt finding where the sentence may entail loss of liberty and render the appeal nugatory

Court orders

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  1. 1.Stay of the sentencing hearing pending determination of the appeal against the ruling of 11 July 2018 finding the applicants in contempt of court
  2. 2.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Contempt of Court ActSection 33(3)
  • Civil Procedure Act, Cap 21, Laws of KenyaSections 1A, 1B and 3A

Cases cited (4)

  • Justus Kariuki Mate & Another vs Martin Nyaga Wambora & Another
    (2014)eKLR, ruling of 29 December 2014
  • National Bank of Kenya & Another vs Geoffrey Wahome Muotia
    Civil Application No. NAI 283 of 2015 (UR 241/2015), (2016)eKLR
  • Rev. Jackson Kipkemboi Koskey & 7 Others V Rev. Samuel Muriithi Njogu & 4 others
    [2007] eKLR (Civil Application No 311 of 2006)
  • Stanislus Nyagaka Ondimu v Kalyasoi Farmers Co-Operative Society & Others
    Civil Application No. Nai. 337 Of 2005 (unreported)
Jurisdiction invoked
Section 33(3) of the Contempt of Court Act, Act No. 46 of 2016 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya

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, "African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2018] KEELC 841 (KLR)", Case Analysis (2018). Application dated 5 September 2018, filed 7 September 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/841/eng@2018-10-04

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