KAMLESH MANSUKHLAL DAMJI PATTNI v ATTORNEY GENERAL [2007] KECA 270 (KLR)
The bottom line
#Kenya's Court of Appeal refused to shield Pattni from arrest or prosecution, ruling there was nothing in the challenged order it could stay or restrain.
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 against the refusal by Wendo, J to extend the order granting leave to operate as a stay is arguable, that is, not frivolous.
- 2.Whether, should the intended appeal succeed, its outcome would be rendered nugatory if the stay or injunction sought is refused.
- 3.What, if anything, is there to be injuncted under the order of the superior court of 22nd March 2006, the subject of the intended appeal.
- 4.Whether the intended appeal is incompetent for want of prior leave to appeal, that is, whether leave is a condition precedent to filing a notice of appeal.
Key legal issues
#Governing test for stay or injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules
An applicant under rule 5(2)(b) must satisfy two cumulative conditions: the appeal or intended appeal must be arguable (not frivolous), and, if the relief is refused, the success of the appeal or intended appeal would be rendered nugatory.
The Court restated the principles consistently applied in such applications, adopting the formulation in Reliance Bank v Norlake Investments. Both limbs must be satisfied before relief is granted; the Court first addressed arguability and then moved to the nugatory question. Because this twin test governs every rule 5(2)(b) application and binds courts below, it is the central ratio of the ruling and the yardstick against which the motion was measured and found wanting on the second limb.
Arguability of the intended appeal
The intended appeal was arguable: the superior court made the orders of 22nd March 2006 without assigning reasons, and the intended appeal raised serious questions on the exercise of discretion in rights-enforcement cases and on the authority of courts over statutory commissions of inquiry.
Counsel for the applicant argued that the learned Judge wrongly and capriciously declined to extend the leave-stay, failing to take relevant factors into account, and that the judicial review proceedings raised fundamental questions on the conduct of statutory commissions of inquiry vis-à-vis the authority of courts and the enforcement of constitutional rights. The Court found the questions prima facie serious, not frivolous but weighty, and fit for full ventilation in the intended appeal. Arguability was therefore satisfied, but that alone did not entitle the applicant to the injunction.
Nugatory limb — whether there was anything capable of being stayed, enforced or restrained
The order of 22nd March 2006 was a bare refusal to extend the order granting leave to operate as a stay; it directed no party to do or refrain from doing anything, so there was nothing for the Court of Appeal to stay, enforce or restrain by injunction, and the second limb failed.
The Court closely examined the order under challenge and found it incapable of execution by any party in any way, probably save only for costs. Following Western College of Arts & Applied Sciences v Oranga, where the judgment under appeal contains nothing, other than an order for costs, to enforce or restrain, the Court of Appeal has no jurisdiction to grant a temporary injunction pending appeal. The threatened arrest and prosecution were also held not directly connected with that order, so the relief sought could not be anchored on it.
Competence of the intended appeal and the notice of appeal without prior leave
Leave to appeal is not a condition precedent to filing a notice of appeal; a filed notice of appeal suffices to give the Court original jurisdiction over a rule 5(2)(b) application, and no leave is required to appeal from an ex-parte order granting or refusing leave under Order 53.
The respondent contended that the intended appeal was incompetent because leave had neither been sought nor obtained, relying on Gurdial Singh Dhillon on orders appealable as of right. The Court rejected the contention: all that is required at the rule 5(2)(b) stage is a notice of appeal, leave may be obtained after filing, and the point had already been succinctly dealt with by the Court in Judicial Commission of Inquiry into the Goldenberg Affair v Job Kilach. The competence objection therefore failed.
Effect of refusing an injunction against criminal prosecution
Refusal of the injunction does not expose the accused to conviction without due process; courts convict only on lawfully obtained evidence established beyond reasonable doubt, and an elaborate appellate process exists.
In response to the applicant's fear that, absent the injunction, he would be arrested, tried, convicted and imprisoned, the Court declined to presume that courts in the country convict without due process or on evidence not lawfully obtained. It further held that the arrest and prosecution sought to be enjoined were not directly connected with the superior court's order of 22nd March 2006, the subject of the intended appeal, and on that basis declined the relief. This reasoning is ancillary to the decisive holding on the nugatory limb rather than the ratio of the dismissal.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules, the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, not a frivolous appeal.
- The applicant must further demonstrate that, should the appeal or intended appeal succeed, its outcome would be rendered nugatory if the stay or injunction is refused.
- Where the order under challenge is a bare refusal to extend an earlier stay and commands no party to do or refrain from doing anything, there is nothing for the Court of Appeal, in a rule 5(2)(b) application, to stay, enforce or restrain by injunction, and the application must fail.
- Obtaining leave to appeal is not a condition precedent to filing a notice of appeal; a notice of appeal may be filed first and leave obtained thereafter.
Court orders
#- 1.The application fails and is ordered dismissed.
- 2.The costs of the application shall be in the intended appeal.
- 3.A temporary order of stay was issued on 25th May 2006 pending the hearing of the application (interim order recorded in the ruling).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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 (application for stay or injunction pending an intended appeal); the Court held that the filed notice of appeal gives it original jurisdiction to entertain such an application, and that obtaining leave is not a condition precedent to filing a notice of appeal.
Relief refused
#Injunction restraining the respondent, the Commissioner of Police and all other authorities, bodies or persons from arresting, preferring criminal charges against or prosecuting the applicant in connection with any matter arising from the Report of the Judicial Commission of Inquiry into the Goldenberg Affair, Exchange Bank Limited or otherwise, until the hearing and determination of the intended appeal.
The order of 22nd March 2006 under challenge was a bare refusal to extend the order granting leave to operate as a stay; it directed no party to do or refrain from doing anything and therefore offered nothing to stay, enforce or restrain by injunction, and the threatened arrest and prosecution were not directly connected with that order.
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.
In the result this application fails and is ordered dismissed. The costs thereof shall be in the intended appeal.
an applicant coming to court under that rule must demonstrate to the satisfaction of the court, first that the appeal or intended appeal is arguable, in other words, that the appeal or intended appeal is not a frivolous appeal. Secondly, the applicant must show that should the appeal or intended appeal succeed, the outcome would be rendered nugatory were the application to be refused
It is plain that the superior court merely declined to extend the order granting leave to operate as a stay. It is clear that it cannot be executed by any party in any way, probably save only for costs.
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.
We are satisfied that the applicant has shown, prima facie, that he has serious questions of law for submissions to the Court in the intended appeal. Those questions are certainly not frivolous but weighty.
Moreover, obtaining of leave is not a condition precedent to the filing of a notice of appeal.
This, in our view, is not directly connected with the order made by the superior court on 22 nd March, 2006 – the subject matter of the intended appeal. We would, in the circumstances, decline to grant the order as sought in the application before us.
we do not subscribe to the perceived notion that courts in this Country convict accused persons without due process and on the basis of evidence which has not been lawfully obtained and established beyond all reasonable doubt. Moreover, there is also an elaborate appellate process in this Country.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KAMLESH MANSUKHLAL DAMJI PATTNI v ATTORNEY GENERAL [2007] KECA 270 (KLR)", Case Analysis (2007). Civil Application No. 112 of 2006 (68/2006 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/270/eng@2007-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.