Civil Application No. E019 of 2024

IN THE COURT OF APPEAL
AT NAIROBI
CORAM: MUSINGA, (P.) ASIKE-MAKHANDIA & KANTAI, JJ.A.)
CIVIL APPLICATION NAI. E019 OF 2024
BETWEEN
KENYA RAILWAYS CORPORATION………………………APPLICANT
AND
YOUTH LIMITED……............................................RESPONDENT
(Being an application for stay of proceedings and execution of an
Order pending the hearing and determination of an intended appeal
from the Ruling and Order of the Environment and Land Court at
Nairobi (Lucy N. Mbugua, J.) dated 31st October 2023
in
E.L.C. Case No. E392 of 2022.)
**********************
RULING OF THE COURT
The applicant, Kenya Railways Corporation, prays in the

main in the Motion on notice brought under rule 5(2)(b) of the
Court of Appeal Rules, 2022, section 3 of the Appellate
Jurisdiction Act and all other provisions of law, that pending the
hearing inter partes of the application, we be pleased to grant an
order staying further proceedings in Nairobi ELC Case No. E392
of 2022, including Notice to Show Cause scheduled for 31st
January, 2024; that pending hearing and determination of the
intended appeal we stay execution of all orders and consequential
orders pursuant to a ruling delivered on 31st October, 2023 (L.N.
1
Mbugua, J.) in the said case, and costs be provided for. In
grounds in support of the Motion and in a supporting affidavit of
Stanley Gitari, the applicant’s Acting General Manager, Legal
Services/Corporation Secretary, it is stated amongst other things
that the intended appeal is arguable with high chances of success
because the trial Judge erred in making a finding of contempt
against the applicant and its Managing Director without any
evidence being adduced before it to prove that the applicant had
disobeyed or intended to disobey the said Court orders; that the
Judge erred in making a finding of contempt against the
applicant’s Managing Director without facts offering to the
precision required of contempt proceedings, the particulars of the
breach of the Court orders issued on 27th April, 2023, and in any
event, the grounds relied upon in the affidavit in support of the
contempt application did not disclose any contempt of the Court
orders; that it was readily disclosed by the applicant that any non-
compliance of the orders of the Court was not on the part of the
applicant nor with the applicant’s connivance but on the part of
the third-parties (M/s Alipan Company Limited) who had been
removed from the suit property; that notice to terminate a tenancy
of Alipan Company Limited was issued on 14th July, 2023 while
the contempt application by the respondent was filed on 27th July,
2023; and that the Judge acted in excess of her jurisdiction. It is
said by the applicant that the intended appeal raises issues of
public interest relating to law on contempt of court; if the orders
2
prayed for are not granted, the Judge will proceed to mete out her
sanction and punishment on the applicant, with the real likelihood
that the applicant’s Managing Director risks being committed to
civil jail, thus lose his liberty and suffer prejudice.
There is a replying affidavit of Dr. Samuel Kamau Macharia,

a Director of the respondent, Youth Limited, who depones, inter
alia, that there has been inordinate delay in bringing the
application as the ruling being challenged was delivered on 31st
October, 2023; that the applicant and its Managing Director are
guilty of concealment of material facts in that they have not
disclosed that they have rented the entire subject property for
commercial and residential purposes, notwithstanding Court
orders of 3rd May, 2023; they have continued to interfere with the
suit property by way of forceful occupation and have refused to
vacate the premises; there was a site visit on 30th November, 2023
where photographs were taken and filed with an arbitrator; that
the Judge made a reasoned ruling in the matter.
When the matter came up for hearing before us on 6th May,

2024, learned counsel Miss Tusiime appeared for the applicant,
while learned counsel Miss Achieng appeared for the respondent.
Both sides had filed written submissions and in a highlight
counsel for the applicant informed us that sentencing of the
applicant by the trial court was to be on 15th May, 2024. Counsel
submitted that the appeal was arguable, citing the case of
3
Multimedia University & Another vs. Gitile N. Naituli [2014]
eKLR as to what an applicant needs to prove to be entitled to an
order for stay by this Court.
Counsel cited the case of Christopher Ndarathi Murungaru

vs. Kenya Anti-Corruption Commission & Another [2006] eKLR
1 KLR 77, where this Court held that matters involving penal
consequences must be treated differently, since it would be of no
consolation to tell a man that his appeal will not be rendered
nugatory even if he went to prison for only one week. Counsel
disagreed with the position taken by the respondent that the trial
court may impose a fine instead of a custodial sentence. Counsel
submitted that the applicant could not take that risk.
Counsel for the respondent in opposing the Motion submitted

that the contemnor had never responded to the application before
the trial court. Counsel wondered by the applicant’s Managing
Director had not sworn an affidavit, leaving the task to the
applicant’s Legal Manager. According to counsel we should let the
applicant to appear before the trial court on 15 th May, 2024 (now
past) to show cause why he should not be held in contempt of
court. “Let him show cause”, concluded counsel.
When we heard the application on the said date, we issued

interim orders staying proceedings in the trial court. This is why
we made that order.
4
For an applicant to succeed in an application for stay of
execution pending appeal, he must, firstly, show that the appeal or
intended appeal, as the case may be, is arguable, which is the
same as saying that it is not frivolous. Such an applicant must, in
addition, show that the appeal would be rendered nugatory absent
stay- see the case of Stanley Kangethe Kinyanjui vs. Tony
Ketter & Others [2013] eKLR.
It is also true that such an applicant need not show a

multiplicity of arguable points as one arguable point will suffice –
Dennis Mugambi Mong'are vs. Attorney General & 3 Others
[2012].
It is proposed to be argued as a ground of appeal that the

Judge erred in finding that the applicant was guilty of contempt of
court when it had not been proved that the applicant or its
Managing Director had committed contempt of court. It is also
intended to be argued on appeal that the standard of proof
required to find a party in contempt of court was not satisfied in
the case before the trial court. We agree that these are arguable
points.
We agree with the applicant that sending a man to prison

even for one day and then his appeal succeeds would render the
appeal nugatory, it would amount to a pyrrhic victory, worthless to
the victor if his appeal succeeded when he had served time in jail.
5
The applicant has satisfied both limbs of the principles which
apply in an application like this one. We allow the Motion. Costs of
the Motion will be in the appeal
Dated and delivered at Nairobi this 12th day of July, 2024.
D. K. MUSINGA, (P.)
...................................
JUDGE OF APPEAL
ASIKE-MAKHANDIA
...................................
JUDGE OF APPEAL
S. ole KANTAI
...................................
JUDGE OF APPEAL
I certify that this is a

true copy of the original
Signed
DEPUTY REGISTRAR

Civil Application No. E019 of 2024

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IN THE COURT OF APPEAL

RULING OF THE COURT

The applicant, Kenya Railways Corporation, prays in the

There is a replying affidavit of Dr. Samuel Kamau Macharia,

When the matter came up for hearing before us on 6th May,

Counsel cited the case of Christopher Ndarathi Murungaru

Counsel for the respondent in opposing the Motion submitted

When we heard the application on the said date, we issued

It is also true that such an applicant need not show a

It is proposed to be argued as a ground of appeal that the

We agree with the applicant that sending a man to prison

Dated and delivered at Nairobi this 12th day of July, 2024.

I certify that this is a

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