KAMLESH MANSUKHLAL DAMJI PATTNI v ATTORNEY GENERAL [2007] KECA 78 (KLR)
The bottom line
#The Court of Appeal refused to stop Pattni's prosecution, ruling that a court order refusing to extend a stay cannot itself be stayed or enjoined pending appeal.
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 intended appeal is arguable and not frivolous
- 2.Whether, if the intended appeal succeeds, the outcome would be rendered nugatory should the stay/injunction be refused
- 3.Whether the order of 22nd March 2006 declining to extend the stay is capable of being stayed or injuncted at all
- 4.Whether the intended appeal would lie in the absence of prior leave to appeal
Key legal issues
#The twin test for relief under rule 5(2)(b)
The applicant must show the appeal is arguable and that refusal of the stay or injunction would render a successful appeal nugatory; the applicant here satisfied the arguability limb.
The court restated the settled principles from Reliance Bank Ltd v Norlake Investments Ltd. It found the intended appeal raised weighty questions - the superior court had made orders on 22nd March 2006 without assigning reasons - so the appeal was not frivolous. However, satisfaction of the first limb alone is insufficient; the applicant must also show nugatory consequences flowing specifically from the order under appeal, which failed on the facts here.
Whether a negative refusal to extend a stay is capable of being stayed or injuncted
A bare refusal to extend an order granting leave to operate as a stay is not an order that can be executed; there is nothing in it to stay, enforce or restrain, so rule 5(2)(b) relief is unavailable.
Following Western College of Arts & Applied Sciences v Oranga & Others, the court held that jurisdiction to grant a temporary injunction pending appeal exists only where there is something in the judgment below, other than costs, to enforce or restrain. The superior court's order of 22nd March 2006 merely declined to extend the stay and ordered no party to do or refrain from anything. The criminal proceedings were not directly connected to that order.
Whether leave to appeal must precede the filing of a notice of appeal
Leave is not a condition precedent to filing a notice of appeal; the notice of appeal gives the Court of Appeal jurisdiction to entertain a rule 5(2)(b) application.
Counsel for the respondent argued the intended appeal was incompetent absent prior leave. The court rejected this, holding that a notice of appeal can be filed first and leave obtained thereafter, and relied on Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others v Job Kilach on the appealability of ex parte orders granting or refusing leave under Order 53.
Whether a criminal prosecution can be enjoined on the footing that conviction would render an appeal nugatory
The court declined to accept that courts convict without due process, noting the existence of an elaborate appellate process; loss of liberty alone did not make the intended appeal nugatory here.
The applicant argued that conviction and imprisonment before the appeal could be determined would render success nugatory. The court responded that it does not subscribe to the notion that courts convict accused persons without due process and on unlawfully obtained evidence, and pointed to the appellate process as a safeguard. It also stressed the requested injunction against prosecution was not directly connected to the order of 22nd March 2006.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules succeeds only if the applicant demonstrates that the appeal or intended appeal is arguable and that, if it succeeds, the result would be rendered nugatory by refusal of the stay or injunction.
- A court has no jurisdiction to stay or enjoin by way of injunction an order that requires no party to do or refrain from doing anything; where there is nothing in the judgment or order to enforce or restrain, no injunction can issue pending appeal.
- Obtaining leave to appeal is not a condition precedent to filing a notice of appeal; a notice of appeal may be filed before leave is obtained.
Court orders
#- 1.The application under rule 5(2)(b) of the Court of Appeal Rules is dismissed
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 132 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, in relation to an intended appeal from the High Court
Relief refused
#Injunction restraining the respondent, the Commissioner of Police or any other authority from arresting, charging or prosecuting the applicant pending the intended appeal
The order sought to be appealed (refusal to extend the stay) commands nothing; what was sought was not directly connected with that order, so there is nothing to stay, enforce or restrain
Costs
The costs of the application shall be in the intended appeal.
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.
Hitherto, this Court has consistently maintained that for an application under rule 5(2) (b) to succeed, the applicant must satisfy the court on two matters, namely:
There is in fact, nothing arising out of the superior court’s order for this Court, in an application expressed to be brought under rule 5(2)(b) of the Rules, to stay, enforce or restrain by injunction.
Moreover, obtaining of leave is not a condition precedent to the filing of a notice of appeal.
In the result this application fails and is ordered dismissed. The costs thereof shall be in the intended appeal.
Issues in the judgment
#The certification block lists three judges, and the body speaks as a single ruling of the court, but no single judge is named as author; authorship of the leading ruling is attributed jointly by convention.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KAMLESH MANSUKHLAL DAMJI PATTNI v ATTORNEY GENERAL [2007] KECA 78 (KLR)", Case Analysis (2007). Civil Application Nai 112 of 2006 (68/2006 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/78/eng@2007-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.