J. P. Machira t/a Machira & Company Advocates v Wangethi Mwangi & Nation Newspapers Limited
The bottom line
#Kenya's Court of Appeal refused a lawyer's bid to appeal a stay of execution, confirming that challenging a judge's discretionary orders requires a stronger-than-usual case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to appeal from the High Court order granting an unconditional stay of execution
- 2.Whether a stronger case was made out, the order appealed from having been made in the exercise of judicial discretion
- 3.What costs order should be made on the leave application
Key legal issues
#Test for grant or refusal of leave to appeal
Leave is refused only where the applicant has no realistic prospects of success; the Court may grant leave even if not so satisfied, for example where a novel point or public interest warrants consideration
The court restated the familiar considerations: 'realistic' prospects exclude fanciful arguments; leave may nonetheless be granted in the public interest or to clarify the law, but there must almost always be a ground meriting serious judicial consideration.
Leave to appeal a discretionary order
A rather stronger case must be made where the order under challenge was made in the exercise of judicial discretion, following Sango Bay Estates
Relying on Sango Bay Estates Ltd v Dresdner Bank A.G., the court held that discretionary orders attract a heightened threshold for leave; on the material before it, no stronger case was made out and no new point of law arose.
Costs of a leave application
The Court has complete discretion on costs and reserved the question until the hearing of the appeal
Rather than awarding costs immediately, the court considered the fairest course to reserve costs to the appeal hearing, with liberty to move the Court if any step in the appeal is not taken in due or reasonable time.
Legal principles established
#- Leave to appeal will be refused only where the applicant has no realistic prospects of success; fanciful prospects are insufficient
- Where the order sought to be appealed was made in the exercise of judicial discretion, a rather stronger case for leave must be made out
- Leave may be granted on public-interest grounds or where a novel point or clarification of the law is raised, even absent doubt on prospects
- A refusal of leave by a judge is not a decision appealable from; the leave application is an original application to the Court of Appeal
Court orders
#- 1.The application for leave to appeal is dismissed
- 2.The question of costs is reserved until the hearing of the appeal, with leave to either party to move the Court if any step in the appeal is not taken within the due or reasonable time
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1709 of 1996
- Jurisdiction invoked
- rule 39(b) of the Court of Appeal Rules (original application for leave to appeal to the Court of Appeal)
Relief refused
#Leave to appeal to the Court of Appeal against the unconditional stay of execution granted by Aganyanya, J.
No stronger case made out; the order was made in the exercise of judicial discretion and no new point of law is involved
Costs
The question of costs reserved until the hearing of the appeal, with leave to either party to move the Court if any step in the appeal is not taken within the due or reasonable time.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on the appeal. The use of the word “realistic” makes it clear that fanciful prospect or an unrealistic argument is not sufficient.
where, as is the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case would have to be made out
this Court may take the view that the case raises a novel point or an issue where the law requires clarifying. There must, however, almost always be a ground of appeal which merits serious judicial consideration.
the application for leave to appeal fails and is dismissed. We would add that we have not referred to the decision of the judge refusing leave to appeal, because this is an original application to this Court, not an appeal from the decision of the judge.
In our view, the fairest order would be that the question of costs be reserved until the hearing of the appeal, with leave to either party to move the Court if any step in the appeal is not taken within the due or reasonable time.
Issues in the judgment
#Judgment describes the High Court order as granting a stay but later says the judge 'refused to grant leave'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J. P. Machira t/a Machira & Company Advocates v Wangethi Mwangi & Nation Newspapers Limited", Case Analysis (2002). Civil Application No. Nai. 433 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/305/eng@2002-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.