[2005] KECA 25 (KLR)
The Court of Appeal found that the applicant, Rustam Hira, faced a real risk of imprisonment for contempt of court before his intended appeal could be heard, which would render the appeal nugatory. The court noted the peculiar situation where two High Court judges with concurrent jurisdiction had issued conflicting...
Source-derived case information.
- Citation
- [2005] KECA 25 (KLR)
- Parties
- Applicant: Rustam Hira; Respondent: Charles Mbagaya Amira; Respondent: Commerce Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 156 of 2005
- Procedural Posture
- Civil Appeal / Application for Stay Pending Appeal
- Outcome
- Application for stay allowed.
- Legal Topics
- Stay of Execution, Contempt of Court, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rustam Hira
Applicant
Charles Mbagaya Amira
Respondent
Commerce Bank Limited
Respondent
Procedural Posture
Civil Appeal / Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of the contempt of court orders pending the hearing and determination of the intended appeal.
- 2 Whether the existence of concurrent jurisdiction between High Court judges affects the validity of the stay order.
- 3 Whether the intended appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The Court of Appeal found that the applicant, Rustam Hira, faced a real risk of imprisonment for contempt of court before his intended appeal could be heard, which would render the appeal nugatory. The court noted the peculiar situation where two High Court judges with concurrent jurisdiction had issued conflicting orders regarding the stay of contempt proceedings. Given the arguable nature of the intended appeal and the risk of irreparable harm to the applicant, the court determined that the interests of justice required the grant of a stay of the contempt orders pending the filing, hearing, and determination of the appeal.
Court Disposition
Application for stay allowed.
Orders
- The orders of contempt of court made by Ojwang, J. are stayed pending the filing, hearing, and determination of the intended appeal.
- The costs of the application shall be in the intended appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CIVIL APPEAL 156 OF 2005 (UR 95-2005)
RUSTAM HIRA ……………………………..…...........................………… APPLICANT
AND
CHARLES MBAGAYA AMIRA ………………........................……. ..1ST RESPONDENT
COMMERCE BANK LIMITED ………..........................…………..… 2ND RESPONDENT
(An application in an appeal from a Ruling of the High Court of Kenya at Nairobi (Ojwang, J) dated 3rd June, 2005
in
H.C.C.C. No. 1169 of 1998)
****************************
RULING OF THE COURT
This is a somewhat peculiar application for stay. We say so because the applicant already has an order of stay granted by a Judge of the superior court (Ibrahim, J) . The other Judge who made the order stayed by Ibrahim, J ( i.e. Ojwang, J) does not appear to agree that another Judge of the High Court with concurrent jurisdiction should have stayed his order. It appears to us as Mr. Nowrojee says, that the order of stay granted by Ibrahim J. will only last until the hearing and determination of the constitutional reference made in the superior court by the applicant. We do not know that the reference will be heard and determined after the hearing and determination of the intended appeal; it may well be that the reference will be heard and completed long before the appeal is filed and heard. If that were to be the case, the applicant, who is a senior advocate of the High Court may run the risk of going to prison if the ruling in the reference were to go against him or if he were, by some misfortune, to appear before Ojwang, J. before the appeal is heard and determined. As we have pointed out Ojwang, J. does not appear to accept the orders made by Ibrahim, J. The intended appeal is clearly arguable and if Mr. Hira were to be committed to civil jail for his alleged contempt, that would clearly render his intended appeal nugatory.
We accordingly allow the motion asking us for a stay and we order that the orders of contempt of court made by Ojwang, J. shall be stayed pending the filing, hearing and determination of his appeal. The costs of to-day shall be in the intended appeal.
Dated at Nairobi this 28th day of June 2005.
R.S.C. OMOLO
……………………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………………………….
JUDGE OF APPEAL
W.S. DEVERELL
………………………………….
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR.