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Court of AppealDismissedCivil Application No. 236 of 2016 (UR 188/2016)

Bestlady Cosmetics Shop Limited & 2 others v Leah Wangechi Gioche

Court of Appeal
24 February 2017
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The three applicants sought a stay of proceedings in High Court Miscellaneous Application No. 238 of 2015, in which Sergon J had found them guilty of contempt of orders of the Business Premises Rent Tribunal and directed them to mitigate before sentencing. The contempt proceedings arose from the eviction of the respondent from premises on Ronald Ngala Street, Nairobi, after the 1st applicant obtained ex-parte break-in orders from the Chief Magistrate's Court without disclosing that the Tribunal had, on 21st October 2014, ordered that the respondent remain in quiet possession pending the hearing of BPRT Case No. 517 of 2014. The 2nd applicant swore the affidavits supporting those ex-parte applications, and the 3rd applicant, an advocate who had been made a party to the proceedings while continuing to act for the 1st and 2nd applicants, had moved the magistrate's court while present when the Tribunal issued its orders. Applying the settled two-limb test for stay, the Court of Appeal held the intended appeal was not arguable: the material showed the applicants acted in flagrant abuse of court process and misled the magistrate into overturning the Tribunal's status quo order. Having failed on the first limb, the court did not consider whether the appeal would be rendered nugatory. The motion was dismissed with costs to the respondent.

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
  2. 2.Whether, if arguable, the intended appeal would be rendered nugatory absent a stay of proceedings

Key legal issues

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01

Whether the intended appeal against conviction for contempt was arguable

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Motion for stay of proceedings is dismissed with costs to the respondent

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 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

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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

p. 4

Costs

The Motion fails and is dismissed with costs to the respondent.

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.

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.
p. 3Test for stay pending appeal - arguability
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.
p. 3Test for stay pending appeal - nugatory limb
The Motion fails and is dismissed with costs to the respondent.
p. 4Final orders - dismissal

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, "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.