Staff Disciplinary Committee, Maseno University & 2 others v Republic Ex-Parte Ochong’ Okello [2007] KECA 239 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court ruling that quashed Maseno University's dismissal of a professor, because winning the appeal later could still undo the damage.
What this practically means
#Executive summary
#Key legal issues
#What principles govern an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules?
The twin test applies: the applicant must show that the appeal or intended appeal is arguable (not frivolous), and that if the stay or injunction is not granted, the appeal, were it to succeed, would be rendered nugatory.
The court restated the now well-settled principles governing rule 5(2)(b) applications, adopting the twin requirements of arguability and the nugatory aspect as stated in Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd, Githunguri v Jimba Credit Corporation Ltd (No. 2) and J.K. Industries Ltd v Kenya Commercial Bank Ltd. Both limbs must be satisfied before a stay or injunction pending appeal can issue. This statement of the governing test is the operative standard the court applied and the rule lower courts must follow.
Was the intended appeal arguable?
Yes. Whether the failure to give the respondent a hearing before reaching the decision to dismiss him amounted to a breach of natural justice was at least an arguable issue.
The dismissal letter recorded that the Staff Disciplinary Committee meeting of 19th June 2003 considered the professor's case in absentia after he failed to attend, and summarily dismissed him. On that material the court found an arguable issue whether the failure to give him a hearing before the dismissal decision amounted to a breach of natural justice. The court was careful to state that, on an interlocutory stay application, it would give no indication of which way the issue was likely to be resolved at the hearing of the appeal.
Would refusal of the stay render the intended appeal nugatory?
No. Even if the intended appeal succeeded, the applicants would still be able to pursue the alleged payment from third parties and to dismiss the respondent, so the nugatory limb failed and the application could not stand.
The court examined both components of the orders sought to be stayed: the quashing of the 19th June 2003 dismissal decision and the prohibition on further adverse proceedings concerning the Kshs. 1,238,698/= paid to Fahari Contractors. It concluded that success on the intended appeal would not be rendered nugatory by refusal of the stay, because the applicants would remain able to pursue the alleged payment to third parties and, in any event, to dismiss the respondent. The application therefore failed the second limb and was dismissed with costs.
Legal principles established
#- An applicant for a stay of execution or an injunction under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin tests: that the appeal or intended appeal is arguable (not frivolous), and that if the stay or injunction is not granted the appeal, were it to succeed, would be rendered nugatory.
- On a stay application the Court does not give any indication of its views as to which way the arguable issue is likely to be resolved at the hearing of the appeal.
- Refusal of a stay does not render an appeal nugatory where the applicant would, even if the appeal succeeded, still be able to pursue the underlying claim against third parties and to give effect to the impugned decision.
Court orders
#- 1.The application for stay of execution is dismissed with costs.
- On appeal from
- High Court of Kenya, Kisumu
- H.C. Misc. Application No. 227 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution or injunction pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Staff Disciplinary Committee, Maseno University & 2 others v Republic Ex-Parte Ochong’ Okello [2007] KECA 239 (KLR)", Case Analysis (2007). Civil Application No. 159 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/239/eng@2007-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.