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Court of AppealDismissedCivil Application No. 308 of 2005 (189/05 UR)· [2006] KECA 125 (KLR)

William Wambugu Wahome v Registrar of Trade Unions & another [2006] KECA 125 (KLR)

Court of Appeal of Kenya
10 August 2006
Philip Kiptoo TunoiP. K. TunoiEGE. M. GithinjiPWP. N. Waki
1,199 words in judgment
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The bottom line

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In Kenya, you can't 'stay' a court's dismissal to bring your case back — only winning the appeal can revive it.

What this practically means

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Executive summary

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The applicant, suspended as Secretary General of KUDHEIHA Workers and replaced by Festus N. Mutunga, obtained leave on 9 June 2005 to apply for judicial review of the registration of his replacement, with leave to operate as a stay. The Union successfully applied to set aside those orders, and Ibrahim, J on 19 September 2005 set aside the leave and stay, struck out the chamber summons and awarded costs to the Union, holding that statutory remedies under section 38 of the Trade Disputes Act were available. The applicant filed a notice of appeal and applied to the Court of Appeal under Rule 5(2)(b) for a stay of execution of that ruling pending appeal. Tunoi, Githinji and Waki, JJA unanimously dismissed the application as misconceived and grossly incompetent. Relying on the meaning of 'execution' as the enforcement of judgments or orders, the Court held that the High Court order granted the respondents no relief capable of enforcement other than costs, which the applicant was not seeking to stay. Following its own decision in Yagnesh Devani v Ngindari, the Court held that a stay of a dismissal order cannot revive the dismissed application or the orders set aside; only the hearing of the appeal could restore them. The Court therefore found it unnecessary to consider arguability or whether the appeal would be rendered nugatory, and dismissed the application with no order as to costs. The intended appeal against the setting aside of the leave and stay orders remains to be heard on its merits.

Key legal issues

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01

Whether an order striking out an application and setting aside leave can be stayed under Rule 5(2)(b)

Holding

No, because the dismissed party seeks not to stop enforcement of relief granted against it, but to use a stay to revive a dismissed application, which the Court cannot do pending appeal.

Reasoning

The Court relied on the definition of 'execution' as enforcement of judgments or orders. The High Court order of 19 September 2005 denied the applicant relief and struck out his application; the only enforceable element was costs, which the applicant did not seek to stay. Citing Yagnesh Devani, the Court held that the application, like the earlier one, was grossly incompetent and declined to consider the Rule 5(2)(b) merits of arguability and nugatory-ness.

p. 3

Legal principles established

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  • A stay of execution cannot lie in respect of an order that dismissed a party's application, because such an order grants no positive relief capable of enforcement by execution; only costs orders could be executed.
  • A stay of execution of a dismissal order cannot revive or restore the substantive application or orders dismissed; restoration can only follow the hearing of the appeal.

Court orders

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  1. 1.Application dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Trade Disputes ActSection 38

Cases cited (1)

  • Yagnesh Devani & 4 others v Joseph Ngindari & 3 others
    Civil Application No. NAI. 136 of 2004 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Application No. 847 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (23)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "William Wambugu Wahome v Registrar of Trade Unions & another [2006] KECA 125 (KLR)", Case Analysis (2006). Civil Application No. 308 of 2005 (189/05 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/125/eng@2006-08-10

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