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Court of AppealAllowedCivil Application No. 56 of 2017 (UR 45/17)

Attorney General & another v Kenya National Assurance Co (2001) Ltd & 36 others [2018] KECA 736 (KLR)

Court of Appeal
15 February 2018
1,685 words in judgment
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The bottom line

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Kenya's Court of Appeal paused the fine and property attachment of a former Mombasa County Commissioner found in contempt, because his appeal raises serious questions.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a contempt ruling of Omollo, J. delivered on 17th October 2017 in ELC No. 123 of 2009. The High Court had found Evans Achoki, the former County Commissioner of Mombasa, in contempt of enforcement orders of 4th March 2014 directing eviction of squatters from L.R No. 397/MN, and fined him Kshs.250,000, with attachment and sale of his movable and immovable property in default. The applicants argued the intended appeal was arguable because the contempt orders had not been served on the 2nd applicant personally, he assumed office in 2016, his reply was on record, the fine offended the Contempt of Court Act, and he enjoyed immunity under the National Government Co-ordination Act; further, that the appeal would be rendered nugatory if his property were attached. The 2nd respondent opposed, conceding arguability but denying nugatory effect. The court, applying the twin principles from Reliance Bank v Norlake Investments and Transouth Conveyors, found both limbs satisfied and granted stay of the contempt ruling pending the intended appeal. Costs were made to abide the outcome of the intended appeal. The decision binds subordinate courts and the High Court on the Rule 5(2)(b) twin-test formulation.

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 the intended appeal would be rendered nugatory if stay is not granted

Key legal issues

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01

Twin principles for stay under Rule 5(2)(b)

Holding

The applicants satisfied both principles: the appeal raised arguable points and would be rendered nugatory if the fine were paid

Reasoning

The court restated that a Rule 5(2)(b) applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is denied, citing Reliance Bank Ltd v Norlake Investments and Peter Paul Mburu Ndururi. Both limbs must be met. The court found arguable points including whether the 2nd applicant could be cited for contempt for orders issued and served before he assumed office, and found the nugatory limb satisfied because payment of the fine would render the appeal academic.

p. 3
02

Whether the 2nd applicant could be cited for contempt of orders issued before he assumed office

Holding

This is an arguable point meriting consideration in the intended appeal; no final determination was made

Reasoning

The 2nd applicant took office as County Commissioner in 2016, while the enforcement orders of 4th March 2014 were issued and served before then. The court, cautioning against making final determinations on issues reserved for the intended appeal, held that whether he could properly be cited for contempt and whether the Judge considered his response were arguable points deserving consideration.

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory principles; satisfying only one is insufficient
  • A single arguable ground suffices to establish arguability under Rule 5(2)(b)

Court orders

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  1. 1.An order of stay of execution against the ruling of Omollo, J. dated 17th October, 2017 pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court
ELC No. 123 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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 determining an application under Rule 5(2)(b) we have to satisfy ourselves that the applicants have demonstrated that they have an arguable appeal or an appeal that is not frivolous, and secondly, that if the orders sought are not granted, the intended appeal will be rendered nugatory, if it eventually succeeds.
p. 2Rule 5(2)(b) twin principles
Nor are they required to show that the appeal would definitely succeed or that the appeal has very high chances of succeeding. It is sufficient, if they can show that it has serious questions of law or a reasonable argument, deserving consideration by this Court.
p. 2Standard of arguability
Consequently, we issue an order of stay of execution against the ruling of Omollo, J. dated 17th October, 2017 pending the hearing and determination of the intended appeal.
p. 3Final orders - stay granted

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, "Attorney General & another v Kenya National Assurance Co (2001) Ltd & 36 others [2018] KECA 736 (KLR)", Case Analysis (2018). Civil Application No. 56 of 2017 (UR 45/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/736/eng@2018-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.