Bestlady Cosmetics Shop Limited & 2 others v Leah Wangechi Gioche
The bottom line
#The Court of Appeal refused to pause contempt proceedings against a cosmetics business and its lawyer for evicting a tenant despite a Tribunal order protecting her.
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
- 2.Whether, if arguable, the intended appeal would be rendered nugatory absent a stay of proceedings
Key legal issues
#Whether the intended appeal against conviction for contempt was arguable
The intended appeal was not arguable; the applicants obtained ex-parte eviction orders without disclosing the Tribunal's status quo order and acted in flagrant abuse of court process.
The Tribunal's order of 21st October 2014, made with advocates present, preserved the respondent's possession pending BPRT 517/2014. Instead of challenging it, the 1st applicant obtained ex-parte break-in orders from the Chief Magistrate's court without disclosing material facts; the 2nd applicant swore the supporting affidavits and the 3rd applicant, present when the Tribunal order issued, moved the magistrate's court. The court found no arguable point and declined to consider the nugatory limb.
Legal principles established
#- An applicant for stay of execution or proceedings pending appeal must first show the appeal or intended appeal is arguable, and then that it would be rendered nugatory absent stay.
Court orders
#- 1.The Motion for stay of proceedings is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC Misc. Application No. 238 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules, 2010
Relief refused
#Stay of proceedings in HC Misc. Appln. No. 238 of 2015, especially the orders of 29th September 2016, pending the intended appeal
The intended appeal was found not arguable, so the nugatory limb did not arise
Costs
The Motion fails and is dismissed with costs to the respondent.
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.
an applicant, to succeed in an application for stay of execution pending appeal has to satisfy us, firstly, that the appeal, or intended appeal, as the case may be, is arguable, which is also to say that it is not frivolous.
Such an applicant, if they overcome that hurdle, has the added duty of showing that the appeal, or intended appeal, would be rendered nugatory absent stay.
The Motion fails and is dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bestlady Cosmetics Shop Limited & 2 others v Leah Wangechi Gioche", Case Analysis (2017). Civil Application No. 236 of 2016 (UR 188/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/772/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.