[2007] KECA 438 (KLR)
The Court of Appeal found that the intended appeal was arguable and that the applicants would suffer prejudice if the committal orders were executed before the appeal was heard. The court exercised its discretion to grant a stay of execution of the committal orders, resulting in the immediate release of the...
Source-derived case information.
- Citation
- [2007] KECA 438 (KLR)
- Parties
- Applicant: Michael Kariuki Njoroge; Applicant: Daniel Njoroge Kinyanjui; Applicant: Joyce Wangui Ngige; Respondent: Wairimu Kinyanjui
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 22 of 2007
- Procedural Posture
- Civil Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- J Wakiaga
- Legal Topics
- Contempt of Court, Stay of Execution, Committal Orders, Exhumation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kariuki Njoroge
Applicant
Daniel Njoroge Kinyanjui
Applicant
Joyce Wangui Ngige
Applicant
Wairimu Kinyanjui
Respondent
Procedural Posture
Civil Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the committal orders for contempt of court pending appeal.
- 2 Whether a stay of the exhumation order should be granted pending the determination of the intended appeal.
Ratio Decidendi
The Court of Appeal found that the intended appeal was arguable and that the applicants would suffer prejudice if the committal orders were executed before the appeal was heard. The court exercised its discretion to grant a stay of execution of the committal orders, resulting in the immediate release of the applicants from prison. Additionally, the court granted a stay of the exhumation order, provided the exhumation had not already occurred at the time of service of the order. The court balanced the interests of justice, noting the respondent's lack of objection to the applicants' release, and preserved the status quo pending the determination of the intended appeal.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the order committing the applicants to prison granted; applicants to be released forthwith.
- Stay of exhumation of the deceased's body granted if exhumation has not occurred by the time of service of this order.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civ Appli 22 of 2007
MICHAEL KARIUKI NJOROGE ………………………..…….. 1ST APPLICANT
DANIEL NJOROGE KINYANJUI ……………………….……. 2ND APPLICANT
JOYCE WANGUI NGIGE ………………………………..……. 3RD APPLICANT
AND
WAIRIMU KINYANJUI ……...……………………………...……...RESPONDENT
(An application for release of the applicants, Michael Kariuki Njoroge, Daniel Njoroge Kinyanjui and Joyce Wangui Ngige pursuant to the orders of committal of (Angawa, J.) dated 7th February, 2007
in
NAIROBI H.C.C.C NO. 96 OF 2007)
*********************************
RULING OF THE COURT
The motion brought under Certificate of Urgency before us seeks two orders: firstly, a stay of execution of orders issued by the superior court, Ang’ awa, J. committing the three applicants to prison for a period of six months for alleged contempt of court, in the Judge’s own words; “on the face of the record”; secondly, a stay of an order by the same Judge for exhumation of the body of the late Charles Kinyanjui Njorogewhich was buried at Langata Cemetery. The applicants want the orders to operate until their intended appeal against the orders and rulings of the superior court is heard and determined.
We have heard submissions on the matter from both sides and it is clear to us that the intended appeal is arguable. Learned counsel for the respondent Mr. Kimathi also informs us that there is no real objection to the release of the applicants from prison provided that the body of the deceased is exhumed and returned to the mortuary. We understand from Mr. Opande, learned counsel for the applicants, that the order for exhumation is currently being executed but there is no verification of that assertion.
In view of the foregoing we hereby grant an order of stay of execution of the order committing the three applicants to prison, the effect of which will be the release of the applicants from prison forthwith. We further order a stay of the exhumation of the deceased’s body if the same has not been exhumed by the time this order is extracted and served on the person or persons charged with such exhumation, among them the Officer Commanding Division, Langata Police Division (OCPD).
Costs shall be in the intended appeal.
Made at Nairobi this 15th day of February, 2007.
R.S.C. OMOLO
………………….
JUDGE OF APPEAL
E.O. O’KUBASU
…………………..
JUDGE OF APPEAL
P.N. WAKI
……………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR