[2012] KECA 10 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GITHINJI, KARANJA & RAWAL, JJ.A.)

CIVIL APPLICATION NO.NAI. 80 OF 2010 (UR 57/2010)

BETWEEN

JAYNE WANGUI GACHOKA…..……………….…………………APPLICANT

AND

KENYA COMMERCIAL BANK LIMITED….….…….….………RESPONDENT

(Being an application for stay pending the lodgment, hearing and determination of an intended appeal from the order of the High Court of Kenya at Nairobi (Gacheche, J.) made on the 19th day of February 2010

in

H.C.Constitutional Reference No. 51 of 2010)

***********************************

RULING OF THE COURT

This is the ruling in respect of the notice of motion dated 9th April, 2010. It is brought under Rule 5(2)(b) of the Court of Appeal Rules. It has four main prayers but only prayer No. 4 remains for the determination by this Court. The said prayer seeks stay orders of paragraph 4 of the order of Hon. Lady Justice Gacheche in Constitutional Reference Petition No. 51 of 2010 dated 19th February, 2010 pending the hearing and determination of the Appeal. As at the time of filing the notice of motion, the appeal had not been filed but we are informed that the same was filed on 22nd April, 2010 and is registered as Civil Appeal No. 90 of 2010.

This notice of motion first came to this Court for hearing on 7th June, 2010. Upon perusal of the same, the Court observed that it emanated from an order made ex-parte by the High Court. The parties were therefore directed to go back to the High Court and have the application that was pending for hearing before that court heard inter-partes.

In the meantime, this Court gave interim orders of stay pending the hearing of that application inter-partes.

Learned counsel for the parties herein Mr. Nowrojee for the applicant and Mr. Mutuafor the respondent informed us at the hearing of this application that instead of proceeding with the interlocutory application before the High Court inter-partes, they decided to proceed with the hearing of the Constitutional Petition itself. They have already filed submissions in the matter and are awaiting the constitution of a three Judge Bench to hear the same.

Both counsel appeared to have mainly agreed to have the stay orders granted on 7th June, 2010extended asthey await the hearing of the Petition before the High Court. Mr. Mutua was nonetheless apprehensive that the Petition before the High Court might take too long and the stay orders should be given a time frame or better still be monitored by this Court by way of having the notice of motion listed for mention before us periodically in order to review the progress of the Constitutional Petition before the High Court. That course was certainly not tenable given our limited jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules.

It was for that reasons that the parties agreed to have the application heard.

Mr.Nowrojeeargued that the two principles to be satisfied before thisCourt grants orders of stay under Rule 5(2)(b) had been proved. Namely, that they have established that the applicant has an arguable appeal and further that if the stay is not granted, the applicant could be committed to civil jail and that is a situation that could not be reversed even if ultimately her appeal have to succeed.

He therefore urged us to allow this notice of motion and grant the stay orders sought.

On his part, Mr. Mutua maintained that the appeal is against the exercise of the discretion of the Judge of the High Court who issued the impugned orders. He urged that the applicant hadnot demonstrated that the learned Judge had not exercised her discretion judicially and this Court had therefore no basis to interfere with that exercise of discretion by the Judge of the High Court.

We have considered these able submissions of both counsel herein. We have also considered the grounds on the face of the notice of motion and the rival affidavits. This Court has severally restated the principles that need to be satisfied when applying Rule 5(2)(b) of the Court of Appeal Rules. These Rules areclearly enunciated in the case of Republic ~VS~ Kenya Anti-Corruption Commission&2 Others [2009] KLR 31where this Court held:

“The law as regards the principles that guide the court in such an application brought pursuant to Rules 5(2)(b) of the Rules are now well settled. ……. The applicant needs to satisfy the court, first, that the appeal or intended appeal is not frivolous, that is to say that it is an arguable appeal. Second, the court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds, the results or the success would be rendered nugatory. In order that the applicant may succeed, he must demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he failed to demonstrate the other limb. (See also Reliance Bank Ltd ~VS~ Norlake Investments Ltd [2002] IEA 227).”

Needless to say, this is an important case. It deals with the freedom of a citizen who unless stay orders are granted risks losing her liberty.

We agree with Mr. Nowrojee that if the appellant is committed to civil jail for failing to raise the Kshs 8. 3 Million, it would not be possible to reverse the situation even if her appeal ultimately succeeds. The nugatory aspect has therefore been established. Without going into the merits or otherwise of the intended appeal, we are also convinced that the appeal is not frivolous and it does raise some pertinent issues for decision.

As to whether we have jurisdiction to entertain this application or not under Rule 5(2)(b), our view is that,the issue of jurisdiction was raised as a peripheral issue and the same can only be adequately addressed after serious discourse and submissions of all the parties concerned so that the court would prepare a comprehensive ruling on the same.

As of now, we arecontented to state that there is a notice of appeal filed in this matter pursuant to Rule 75of theCourt of Appeal Rules as contemplated by Rule 5(2)(b) of the same Rules and the matter is properly before us.

For theforegoing reasons, we are satisfied that the applicant’s noticeof motion has merit.However, the duration of the stay order should be limited to such a reasonable time as would allow the appeal to be heard on priority basis. We thereforeallow thesame to the extent that the execution of the order of the High Court made on 19thFebruary, 2010 is stayed for six (6) months only. We nonetheless find it necessary to order that Civil Appeal No. 90 of 2010 be fixed for hearing on priority basis.

Costs of this motion will be in the appeal.

Dated and Delivered at Nairobi this 25thday of May 2012.

E. M. GITHINJI

…….………………

JUDGE OF APPEAL

W. KARANJA

………….…………

JUDGE OF APPEAL

K. H. RAWAL

.….………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR