[2007] KECA 168 (KLR)
The Court found that the applicants satisfied both limbs required under rule 5(2)(b) of the Court of Appeal Rules: the intended appeal was arguable, as there was a legitimate question regarding the propriety of the contempt finding in light of an existing stay order, and the appeal would be rendered nugatory if stay...
Source-derived case information.
- Citation
- [2007] KECA 168 (KLR)
- Parties
- Applicant: Rev. Jackson Kipkemboi; Applicant: Rev. Stephen M. Mwangi; Applicant: Rev. Josephat Kamau Nganga; Applicant: Rev. Eliud Karanja Wanyoike; Applicant: Rev. Enock K. Kiplagat; Applicant: Rev. Stephen Kiguru Kamau; Applicant: Rev. Stanley W. Kamau; Applicant: Rev. Samuel Wachira; Respondent: Rev. Samuel Muriithi Njogu; Respondent: Rev. Joseph Samoei; Respondent: Rev. Samuel M. Kathita; Respondent: Rev. Elijah Cheruiyot; Respondent: Rev. Wilfred Nyamu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 18 of 2007
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application allowed. Stay of execution granted. Immediate release of Mr. Elisha Zebedee Ongoya ordered.
- Judges
- AM Githinji, CA Otieno
- Legal Topics
- Stay of Execution, Contempt of Court, Appeals, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Jackson Kipkemboi
Applicant
Rev. Stephen M. Mwangi
Applicant
Rev. Josephat Kamau Nganga
Applicant
Rev. Eliud Karanja Wanyoike
Applicant
Rev. Enock K. Kiplagat
Applicant
Rev. Stephen Kiguru Kamau
Applicant
Rev. Stanley W. Kamau
Applicant
Rev. Samuel Wachira
Applicant
Rev. Samuel Muriithi Njogu
Respondent
Rev. Joseph Samoei
Respondent
Rev. Samuel M. Kathita
Respondent
Rev. Elijah Cheruiyot
Respondent
Rev. Wilfred Nyamu
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution under rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the continued detention of Mr. Elisha Zebedee Ongoya would render the intended appeal nugatory if stay is not granted.
- 3 Whether the finding of contempt was proper in light of the existing stay order from the Court of Appeal.
Ratio Decidendi
The Court found that the applicants satisfied both limbs required under rule 5(2)(b) of the Court of Appeal Rules: the intended appeal was arguable, as there was a legitimate question regarding the propriety of the contempt finding in light of an existing stay order, and the appeal would be rendered nugatory if stay was not granted because Mr. Ongoya would have served the full sentence before the appeal was heard. The Court therefore allowed the application, ordered the immediate release of Mr. Ongoya, and stayed the execution of the committal order pending the hearing and determination of the intended appeal.
Court Disposition
Application allowed. Stay of execution granted. Immediate release of Mr. Elisha Zebedee Ongoya ordered.
Orders
- There shall be a stay of execution of the orders of Hon. Lady Justice Mugo made on 6th February, 2007 committing Mr. Elisha Zebedee Ongoya, Advocate, pending the hearing and determination of the intended appeal.
- Mr. Elisha Zebedee Ongoya, Advocate, shall be released from prison forthwith until the intended appeal is heard and determined.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civil Appli 18 of 2007 (UR.15/07)
REV. JACKSON KIPKEMBOI REV. STEPHEN M. MWANGI REV. JOSEPHAT KAMAU NGANGA REV. ELIUD KARANJA WANYOIKE REV. ENOCK K. KIPLAGAT REV. STEPHEN KIGURU KAMAU REV. STANLEY W. KAMAU REV. SAMUEL WACHIRA ……………………………………..APPLICANTS
AND
REV. SAMUEL MURIITHI NJOGU REV. JOSEPH SAMOEI REV. SAMUEL M. KATHITA REV. ELIJAH CHERUIYOT REV. WILFRED NYAMU …………………………………….RESPONDENTS
(An application for the release of Mr. Elisha Zebedee Ongoya Advocate pursuant to the orders of (Hon. Justice Mugo) dated 6th February, 2007 In
H.C.C.C. NO. 1237 OF 1999) *****************
RULING OF THE COURT
We have before us an application brought under certificate of urgency in which the applicant is seeking two main orders namely:-
“(b) That there be a stay or execution(sic) of the orders of Hon. Lady Justice Mugo made on 6th February, 2007 committing Mr. Elisha Zebedee Ongoya, Advocate in HCCC No. 1237 of 1999 pursuant to her earlier orders in HCCC No. 1236 of 2004 hearing (sic) determination of the intended appeal.
(c)That the said Mr. Elisha Zebedee Ongoya Advocate be and is hereby released forthwith pending the hearing determination of intended appeal.”
The application is brought under rule 5 (2)(b) of this Court’s Rules (the Rules). That in effect means that the applicant has to demonstrate the now well known two principles namely first that the intended appeal is arguable i.e. is not frivolous. Secondly that the results of the intended appeal were it to succeed would be rendered nugatory if this application is not allowed.
Mr. Albert Khaminwa for the respondent does not oppose the application and rightly too. Elisha Zebedee is an advocate. In another suit HCCC No. 1236 of 1999 he had been held in contempt of the court by the same learned Judge. He applied to this Court in CA Nai. 311 of 2006 and we ordered stay of that order of the superior court. Armed with that order he rightly, in our view, appeared before the same Judge on 6th February, 2007 in HCCC 1237 of 1999 and after that matter was partly heard, the learned Judge on her own motion found him guilty on contempt of court on grounds that he did not purge the earlier contempt notwithstanding that a stay had been granted in respect of that earlier allegation and that that earlier allegation was subject of an intended appeal the decision of which might go either way. We on our view feel that the intended appeal is arguable and to that effect we agree with both learned counsel.
Elisha Zebedee Ongoya was sent to jail for 21 days. It is obvious that by the time his intended appeal will be heard, he will have served the sentence, hence the appeal even if it were to succeed the results will be rendered nugatory if we do not grant stay at this juncture.
We do allow the application and order that Elisha Zebedee Ongoya be released from prison forthwith till his intended appeal will be heard and decided.
As a parting shot, we feel being in control of a court should not amount to making it difficult for the parties before the Court to freely carry out their duties through fear.
Dated and delivered at Nairobi this 8th day of February, 2007.
E. O. O’KUBASU
……………………….
JUDGE OF APPEAL
E. M. GITHINJI
…………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
…………….…………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR