Martin Tindi Khaemba v The Law Society of Kenya & 2 others
The bottom line
#The Court of Appeal refused to pause a lawyer's disciplinary hearing because he proved neither a strong appeal nor real harm from continuing.
What this practically means
#Executive summary
#Key legal issues
#Test for grant of stay of proceedings or other relief under Rule 5(2)(b) of the Court of Appeal Rules
The twin tests of an arguable appeal and nugatory effect were not satisfied; the application was dismissed
The Court restated that although its Rule 5(2)(b) discretion is unfettered, it is exercised within established parameters: the applicant must show an arguable, non-frivolous appeal and that the appeal would be rendered nugatory if stay is denied. On the facts, the Disciplinary Tribunal has its own mandate under the Advocates Act and whether it exceeded it could not be established since proceedings had not commenced; the nugatory limb rested on mere presumption of prejudice.
Whether the Disciplinary Tribunal lacked jurisdiction to entertain the complaint against the advocate
The Court declined to make a final determination, holding arguability was not demonstrated since the Tribunal has a statutory mandate to determine advocate-client disputes and its proceedings had not yet commenced
The intended appeal rested principally on the allegation that the Disciplinary Tribunal lacked jurisdiction because the taxed costs certificate and Kasango, J.'s orders were unchallenged and the complaint was res judicata. The Court, careful not to determine the merits, held the point not arguable because the Tribunal's mandate under the Advocates Act is distinct and whether it acted outside that mandate could not yet be assessed.
Whether the intended appeal would be rendered nugatory absent stay
Nugatory effect was not demonstrated; apprehension of prejudicial orders was mere presumption, insufficient to found the discretion
The applicant feared the Disciplinary Tribunal would issue orders prejudicial to him, but the Court held that discretion cannot be exercised on mere fear or suspicion of what might happen. The purpose of Rule 5(2)(b) orders is to halt something that will indisputably happen in their absence, which the applicant did not establish.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that he has an arguable appeal which is not frivolous, and that if the orders sought are not granted the intended appeal will be rendered nugatory if it eventually succeeds
- The Court cannot grant Rule 5(2)(b) relief on mere fear or suspicion of what a party thinks might happen; the orders are meant to halt something which will indisputably happen in their absence
Court orders
#- 1.The application for stay of proceedings is dismissed
- 2.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Judicial Review Misc. Applic. No. 22 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary relief pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Tindi Khaemba v The Law Society of Kenya & 2 others", Case Analysis (2018). Civil Application No. 41 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/104/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.