Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 45 of 2015 (UR 39/2015)· [2015] KECA 219 (KLR)

Chairman Board of Directors National Water Conservation & Pipeline Corporation v Eng. Meshack M. Saboke & 2 others

Court of Appeal
20 November 2015
1,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Court of Appeal (Koome, G.B.M Kariuki and Azangalala, JJ.A) ruled on a notice of motion under Rule 5(2)(b) of the Court's Rules by the Chairman Board of Directors of the National Water Conservation & Pipeline Corporation seeking stay of execution of a judgment of Nduma PJ of the Employment and Labour Relations Court delivered on 30th January 2015 in Industrial Cause No. 847 of 2012. The lower court had awarded the 1st respondent, a former Managing Director whose contract was terminated after he was sent on compulsory leave and never given a hearing, Kshs. 11,636,000/= with costs and interest. The court restated the twin Rule 5(2)(b) test: the applicant must show the intended appeal is arguable and that it will be rendered nugatory absent a stay. Applying the test, the court found the intended appeal arguable on whether damages for the unexpired term of a fixed-term contract can be awarded and whether notice pay was contractually due. On the nugatory limb, although the respondent asserted he could refund the decretal sum, he produced no evidence of means; relying on Reliance Bank Ltd v Norlake Investment Ltd, the court held inability to refund is not the only relevant consideration. The application was allowed on conditional terms: execution stayed pending appeal upon deposit of Kshs. 6,000,000/= in an interest-earning account within 30 days, failing which the stay lapses, with costs of the application to abide the appeal. The decision below was not disturbed; only execution was stayed.

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory without a stay

Holding

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.

Reasoning

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/=.

p. 3

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. 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. 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. 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.