Banking Insurance and Finance Union (K) v Justus Aloo Ogeka & 9 others [2015] KECA 248 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a decision that merely refuses to pause a case, because such decisions cannot be enforced.
What this practically means
#Executive summary
#Key legal issues
#Whether an intended appeal against an order refusing stay of proceedings (a negative order) can be arguable
The Court held that an intended appeal against a refusal to grant stay is an appeal against a negative order and does not disclose an arguable appeal.
The Court reasoned that the impugned ruling merely refused to stay proceedings and imposed no obligation on any party; save for costs, such a negative order is incapable of execution. Following its prior decisions, the Court restated that no appeal lies against a negative order except as to costs. Since the intended appeal was against a negative order and also challenged the exercise of discretion by the trial court, the applicant failed to establish the arguability limb of Rule 5(2)(b), rendering the application for stay of proceedings before the appellate court meritless.
Whether a court may entertain an appeal challenging the exercise of discretion by another court
Relying on Supreme Court dictum, the Court indicated that a court lacks jurisdiction to entertain an application challenging the exercise of discretion by another court.
The Court noted that the decision to grant or refuse stay is discretionary. Citing the Supreme Court in Teachers Service Commission v KNUT, it expressed the view that a court lacks jurisdiction to entertain an application challenging the exercise of discretion by another court. Guided by that dictum together with Western College, and noting that the intended appeal was against a negative order, the Court found the intended appeal not arguable and saw no need to consider the nugatory limb.
Whether the nugatory limb of Rule 5(2)(b) needed consideration
Having found the intended appeal not arguable, the Court declined to consider the nugatory limb.
The Court applied the settled approach that the twin limbs of Rule 5(2)(b) must both be satisfied. Since the applicant had failed on the first limb - arguability of the intended appeal - it was unnecessary to determine whether the appeal, if successful, would be rendered nugatory. The application therefore failed outright and was dismissed with costs to the first respondent.
Legal principles established
#- No appeal lies against a negative order except in respect of costs, and a negative order is incapable of execution.
- A court has no jurisdiction to issue stay pending appeal where there is nothing in the order of the court below that can be enforced.
- An applicant under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that unless stay is granted the appeal would be rendered nugatory; failure on one limb is fatal.
Court orders
#- 1.The Notice of Motion dated 28th January 2015 is dismissed with costs
- On appeal from
- Industrial Court of Kenya at Nairobi
- IND. Appeal No. 'A' of 2012
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union (K) v Justus Aloo Ogeka & 9 others [2015] KECA 248 (KLR)", Case Analysis (2015). Civil Application No. NAI. 20 of 2015 (UR 20/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/248/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.