Chairman Board of Directors National Water Conservation & Pipeline Corporation v Eng. Meshack M. Saboke & 2 others
The bottom line
#Kenya's Court of Appeal halted collection of an Sh11.6 million employment award, but only after the employer deposited Sh6 million as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal raised arguable points of law on the award of damages for the unexpired term of a fixed-term contract and on notice pay.
The applicant argued that the award of the full salary for the unserved remainder of a three-year fixed contract was unjustified, and that notice pay was awarded contrary to the contract and the Employment Act. Citing ELRC authority questioning generous damages for unexpired fixed-term contracts, the court found these were arguable points of law not requiring the appeal to succeed.
Whether the appeal would be rendered nugatory without a stay
The respondent's bare assertion that he could repay the decretal sum, unsupported by evidence of means, meant the appeal would be rendered nugatory if execution proceeded.
The decretal sum was Kshs. 11,636,000/=. The 1st respondent deposed he was capable of repaying but gave no evidence of his means. Relying on Reliance Bank Ltd v Norlake Investment Ltd, inability to refund is not the only factor rendering an appeal nugatory. The court therefore granted stay conditional on a security deposit of Kshs. 6,000,000/=.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory without stay.
- An arguable appeal is one with arguable points of law, not one that must necessarily succeed.
- In assessing nugatory value, where a decree is for payment of money, inability to refund is not the only consideration; the court must weigh conflicting claims of both sides.
Court orders
#- 1.The judgment and decree of the Employment and Labour Relations Court made on 30th January 2015 be and is hereby stayed pending the hearing and determination of the intended appeal
- 2.The applicant to deposit within 30 days a sum of Kshs. 6,000,000/= in an interest earning account in a reputable financial institution to be agreed by both counsel as security pending the appeal, failing which the stay shall lapse
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court (Industrial Court of Kenya)
- Cause No. 847 of 2012
- Jurisdiction invoked
- Rule 5 (2) (b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chairman Board of Directors National Water Conservation & Pipeline Corporation v Eng. Meshack M. Saboke & 2 others", Case Analysis (2015). Civil Application No. 45 of 2015 (UR 39/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/219/eng@2015-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.