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ELCDismissedNot stated in judgment (Notice of Motion dated 20th January 2022)· [2022] KEELC 3263 (KLR)

District Physical Planning Officer & 4 others v Langat (Constitutional Petition 1 of 2013) [2022] KEELC 3263 (KLR)

Environment and Land Court
28 July 2022
MOM.C. Oundo
2,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to delay contempt sentencing because no appeal was actually on file and there was no sentence yet to stay.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (M.C. Oundo, J) determined a Notice of Motion dated 20th January 2022 filed by the Attorney General on behalf of Applicants who had been found in contempt of court orders issued in a judgment of 5th May 2015, by a ruling of 2nd December 2021. The Applicants sought temporary deferment of their sentencing pending determination of an application in the Court of Appeal, invoking Order 42 Rule 6(1) of the Civil Procedure Rules and Articles 50 and 159 of the Constitution. They argued their liberty, fundamental freedom and reputations as civil servants were at stake, that non-compliance was not deliberate, and that their appeal as of right would be rendered nugatory. The Respondent opposed, contending the Notice of Appeal filed on 24th December 2021 was out of time and unregularized, so no appeal existed, robbing the court of jurisdiction, and that the contemnors ought to purge the contempt first. The court framed two issues: whether the stay application was merited, and whether the court had jurisdiction. It held that before sentencing there is nothing specific to stay, so execution cannot ensue and a claim of substantial loss is premature; the Applicants retain a right of appeal against sentence once passed. It further found no subsisting appeal existed because the Notice of Appeal was filed beyond the 14 days in Rule 75(1) and (2) of the Court of Appeal Rules and the extension application dated 14th January 2022 had not been prosecuted. The application was dismissed with costs to the Petitioners.

Key legal issues

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01

Whether stay of sentencing of contemnors pending appeal can be granted under Order 42 Rule 6(1)

Holding

The application for stay was premature because sentence had not been passed; there is nothing to stay before sentencing, and the right of appeal against sentence remains open to the Applicants

Reasoning

The court reasoned that execution in contempt matters only arises after sentence is handed down. Since the nature and severity of the yet-to-be-passed sentence were unknown, the Applicants could not plead substantial loss or prejudice. The other conditions under Order 42 Rule 6(2) therefore did not need consideration, and the right of appeal would still lie upon sentencing.

p. 5
02

Whether the court had jurisdiction to entertain the application in the absence of a subsisting appeal

Holding

There was no subsisting appeal: the Notice of Appeal was filed out of the 14 days under Rule 75(1) and (2) of the Court of Appeal Rules and was not regularized, and the application to file the appeal out of time had not been prosecuted

Reasoning

The impugned ruling was delivered on 2nd December 2021 and the Notice of Appeal was filed on 24th December 2021, beyond the 14-day period in Rule 75(1) and (2) of the Court of Appeal Rules. The extension-of-time application dated 14th January 2022 had not been prosecuted. Relying on Supreme Court authority, the court found no legal basis for stay where no appeal or pending extension application exists.

p. 5

Legal principles established

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  • Execution in contempt proceedings only ensues after sentence is handed down; before sentencing there is nothing specific to stay
  • A stay of execution cannot be granted in the absence of a subsisting appeal; an irregular, unregularized Notice of Appeal means no appeal exists

Court orders

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  1. 1.The Application dated 20th January 2022 seeking stay of sentencing is dismissed
  2. 2.Costs to the Petitioners

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Civil Procedure RulesOrder 42 Rule 4
  • Constitution of KenyaArticles 50 and 159
  • Court of Appeal RulesRule 75(1) and (2)

Cases cited (10)

  • Mbeki & Others v Macharia & Another
    [2005] EA 206
  • Parliamentary Service Commission v Okoiti & Another
    (Civil Application E349 of 2021) [2021] KECA 120 (KLR) (22 October 2021)(Ruling)
  • Owners of Motor Vessel 'Lillian' v Caltex Oil Kenya Limited
    [1989] pg 1-49
  • Raymond M Omboga v Austne Pyan Maranga
    Kisii HCCA No. 15 of 2010
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Stephen Mbugua Gituthi & 2 others v National Land Commission & another
    [2021] eKLR
  • Charles Wahome Gethi v Angela Wairimu Gethi
    [2008] eKLR
  • Wendano Matuu Co Ltd & 2 others v Joshua Kimeu Kioko & 6 others
    [2020] eKLR
  • James Mbatia Thuo & Ephantus Mwangi v Kenya Railways Corporation & Attorney General of Kenya
    [2018] eKLR
  • University of Eldoret & Another v Hosea Sitienei & 3 Others
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 42 Rule 6(1) of the Civil Procedure Rules; Articles 50 and 159 of the Constitution

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, "District Physical Planning Officer & 4 others v Langat (Constitutional Petition 1 of 2013) [2022] KEELC 3263 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 20th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3263/eng@2022-07-28

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