Wardpa Holdings Limited & 3 others v Emmanuel Waweru Lima Mathai & another [2010] KECA 451 (KLR)
The bottom line
#The Court of Appeal refused to halt contempt proceedings in Kenya, ruling that being summoned to show cause for contempt is not yet an immediate threat to liberty.
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 (not frivolous)
- 2.Whether, if the appeal succeeds, it would be rendered nugatory - in particular whether the applicants face an immediate threat to their liberty
Key legal issues
#Whether a conviction of contempt requiring attendance to show cause why punishment should not be imposed threatens liberty such that an intended appeal would be rendered nugatory
The Court held it did not. Until the superior court has actually made an order for committal - and it could instead impose a fine or lift the challenged order - the applicants cannot show their liberty is at immediate risk, so the nugatory requirement fails.
The twin requirements of rule 5(2)(b) are arguability and nugatory impact. The first was met: the grounds of the intended appeal were not frivolous. On the second, the applicants had only been ordered to appear and show cause on 21st January 2010; punishment had not been determined. The superior court could still make orders short of committal, so any loss of liberty was speculative rather than immediate, and the stay application failed.
Arguability of the intended appeal
The Court found the grounds set out in the memorandum of appeal were not frivolous, satisfying the first limb of the rule 5(2)(b) test, without pronouncing on their merits.
The Court perused the memorandum of appeal and considered the grounds raised, including allegations of non-service of the order, lapse of the ex parte order, and non-service of the contempt application. Though it could not pronounce on the merits at that stage, it was satisfied the grounds were arguable. The application nonetheless failed on the second limb.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-impact requirements; where no committal order has yet been made and the applicant has merely been summoned to show cause, the nugatory limb is not satisfied because the court may yet make other orders such as a fine.
Court orders
#- 1.The application dated 14th December 2009 for stay pending appeal is dismissed
- 2.Costs to abide the intended appeal
- 3.Continuation of the interim stay of the order requiring the applicants to appear before the superior court on 21st January 2010, which had been extended to 5th February 2010, lapses with delivery of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Courts Nairobi
- H.C.C. Suit No. 634 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the conviction of contempt and all consequential orders pending the intended appeal
The applicants could not demonstrate an immediate threat to their liberty as no committal order had been made; the application was premature and speculative
Stay of proceedings in H.C.C. Suit No. 634 of 2008 pending the intended appeal
The second requirement under rule 5(2)(b) was not met since no order threatening the applicants' liberty was in place
Costs
The application is dismissed with costs to abide 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 the application is dismissed with costs to abide the intended appeal.
the applicants cannot presently demonstrate that they are likely to lose their liberty or that there is an immediate threat to lose their liberty as no order for their committal has been made yet
It is for example possible for superior court to make an order for the payment of a fine or lift the challenged order, when applicant appears next before it in which events the applicants' liberty would not be risk at all.
although we cannot at this stage pronounce on the merit of any ground we are of the view that the grounds as set out are not frivolous.
Issues in the judgment
#The judgment inconsistently refers to the restraining order as being made on 28th October 2008 in one passage and 24th October 2008 in another
The judgment refers to the applicants variously as applicants, appellants and respondents within the same submissions passage, and misstates party roles
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wardpa Holdings Limited & 3 others v Emmanuel Waweru Lima Mathai & another [2010] KECA 451 (KLR)", Case Analysis (2010). Civil Application No. 351 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/451/eng@2010-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.