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ELCDismissedCivil Suit No. 6308 of 2019 (appeal therefrom, Notice of Motion dated July 28, 2021)· [2022] KEELC 3699 (KLR)

Wanjiku v Kariuki (Environment and Land Appeal E054 of 2021) [2022] KEELC 3699 (KLR)

High Court of Kenya
12 May 2022
LKL. Komingoi
1,841 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The High Court dismissed Mary's bid to pause her contempt case on appeal, ruling she cannot pursue review and appeal of the same order simultaneously.

What this practically means

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Executive summary

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This was a Notice of Motion dated July 28, 2021 brought by the Appellant under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, seeking a stay of further proceedings in Chief Magistrate's Civil Suit No. 6308 of 2019 and a stay of the orders of the Principal Magistrate (Mr. Kagoni) pending appeal. The orders sought to be stayed arose from a contempt ruling of April 29, 2021, in which the trial Magistrate found the Appellant in contempt of a consent order of October 2, 2019 requiring status quo (no further construction) on L.R Nairobi Block 107/1/126, fining her Kshs. 100,000 with six months' imprisonment in default; those orders were affirmed on June 29, 2021 upon dismissal of her review application. The Respondent opposed, arguing inter alia that a party who has sought review cannot then appeal the same orders, that negative contempt orders are incapable of being stayed, and that the appeal does not touch the main suit. The court, per L. Komingoi J, held that under Order 45 rules 1 and 2 a party cannot apply for review and appeal from the same decree or order at the same time; having elected review, the Appellant could not have a second bite of the cherry. On stay of proceedings, applying the Re Global Tours & Travel Ltd discretion, the court held that staying the main suit would be a travesty of justice since the appeal concerns only the contempt application and not substantive issues in the suit. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether stay of the review orders of June 29, 2021 could issue

Holding

Refused. The orders of April 29, 2021 and June 29, 2021 are the same; having elected review, the Appellant cannot also appeal the same orders.

Reasoning

Order 45 rules 1 and 2 of the Civil Procedure Rules permit a person aggrieved by a decree or order to seek review, but a party cannot simultaneously pursue review and appeal from the same decree or order. The Appellant applied for review of the contempt orders, which was dismissed on June 29, 2021. She was therefore barred from appealing those same orders and could not satisfy the court that they ought to be stayed.

p. 4
02

Whether stay of the main suit's proceedings should issue pending appeal

Holding

Refused. The appeal concerns only the contempt ruling, not the main suit; staying proceedings would be a travesty of justice.

Reasoning

Stay of proceedings under Order 42 rule 6(1) is discretionary and guided by the Re Global Tours & Travel factors: interest of justice, expeditious disposal, arguability of the appeal, judicial time and expedition. The intended appeal only challenges the contempt findings of April 29 and June 29, 2021 and does not touch substantive issues in the main suit, so the Respondent would suffer no prejudice if the main suit proceeded, and any prejudice would be compensable in damages.

p. 4

Legal principles established

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  • A party cannot apply for review and appeal at the same time from the same decree or order; election for review bars a subsequent appeal against the same order
  • Grant of stay of proceedings pending appeal is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and expedition

Court orders

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  1. 1.Notice of motion dated July 28, 2021 dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 45 Rules 1 and 2

Cases cited (6)

  • Re Global Tours & Travel Ltd HCWC No. 43 of 2000
    as cited in SBM Bank Kenya Limited v Misky General Limited & Another [2021] eKLR
  • SBM Bank Kenya Limited v Misky General Limited & Another
    [2021] eKLR
  • Juliet Kwamboka Ongwae t/a Kahawa Kulture v Mocha Place Limited
    [2020] eKLR
  • Gerald Kithu Muchange v Catherine Muthoni Ngare & Another
    [2020] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Pancras T Swai v Kenya Breweries Limited
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts
Civil Suit No. 6308 of 2019
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Wanjiku v Kariuki (Environment and Land Appeal E054 of 2021) [2022] KEELC 3699 (KLR)", Case Analysis (2022). Civil Suit No. 6308 of 2019 (appeal therefrom, Notice of Motion dated July 28, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3699/eng@2022-05-12

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