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Court of AppealDismissedCivil Application No. 351 of 2009

Wardpa Holdings Limited & 3 others v Emmanuel Waweru Lima Mathai & another [2010] KECA 451 (KLR)

Court of Appeal
5 February 2010
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, whose sale and transfer of LR 209/2489/22 Ngara, Nairobi was held by Kimaru, J. of the High Court to be in contempt of a restraining order made on 28th October 2008, applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of the conviction of contempt and of the proceedings pending an intended appeal. The High Court had ordered the 2nd, 3rd and 4th applicants to appear on 21st January 2010 to show cause why they should not be punished for contempt. The applicants argued the order was never served, had lapsed, was void ab initio, and that they risked losing their liberty through committal to civil jail, rendering any appeal nugatory. The 1st respondent countered that the appeal was frivolous, the grounds could be canvassed in the pending suit, and the application was premature and speculative since no committal order had been made. The Court of Appeal (Githinji, Visram and Nyamu, JJA) found the intended appeal arguable, holding the grounds were not frivolous. However, it held the applicants could not demonstrate an immediate threat to their liberty because no committal order had been made; the superior court could still impose a fine or lift the challenged order. The application was accordingly dismissed with costs to abide the intended appeal. The ruling establishes that an order requiring attendance to show cause why contempt should not be punished does not, without more, satisfy the nugatory-impact limb of rule 5(2)(b).

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 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

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01

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

Holding

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.

Reasoning

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.

p. 3
02

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 14th December 2009 for stay pending appeal is dismissed
  2. 2.Costs to abide the intended appeal
  3. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 3

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

p. 3

Costs

The application is dismissed with costs to abide the intended appeal.

Quotable passages

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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.
p. 3Final orders - dismissal of the stay application
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
p. 3Nugatory-impact requirement in contempt appeals
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.
p. 3Range of sanctions open to the superior court short of committal
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.
p. 3Arguability limb of rule 5(2)(b)

Issues in the judgment

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minor

The judgment inconsistently refers to the restraining order as being made on 28th October 2008 in one passage and 24th October 2008 in another

minor

The judgment refers to the applicants variously as applicants, appellants and respondents within the same submissions passage, and misstates party roles

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.