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Court of AppealDismissedCivil Application No. NAI. 20 of 2015 (UR 20/2015)· [2015] KECA 248 (KLR)

Banking Insurance and Finance Union (K) v Justus Aloo Ogeka & 9 others [2015] KECA 248 (KLR)

Court of Appeal of Kenya
6 November 2015
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, Banking Insurance and Finance Union (K), moved the Court of Appeal under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules seeking stay of proceedings in Nairobi Industrial Cause Appeal No. 1 'A' of 2012 pending an intended appeal against a ruling of Ndolo, J. of the Industrial Court delivered on 21st November 2014. The impugned ruling had dismissed the applicant's application for stay of proceedings before the Industrial Court, holding that no point of law had been raised. The Court of Appeal (Githinji, Mwilu and Otieno-Odek, JJ.A.) held that the intended appeal was against a negative order - an order refusing stay - and restated the settled position that, except for costs, no appeal lies against a negative order, which is incapable of execution. The Court further noted that the decision to grant or refuse stay is discretionary and, citing the Supreme Court's dictum in Teachers Service Commission v KNUT, observed that a court lacks jurisdiction to entertain an application challenging the exercise of discretion by another court. Applying the twin Rule 5(2)(b) principles, the Court found that the applicant had not demonstrated that the intended appeal was arguable, and having so found, declined to consider whether the appeal would be rendered nugatory. The Notice of Motion dated 28th January 2015 was dismissed with costs. The judgment binds lower courts on the rule that no appeal lies against a negative order save as to costs.

Key legal issues

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01

Whether an intended appeal against an order refusing stay of proceedings (a negative order) can be arguable

Holding

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.

Reasoning

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.

p. 3
02

Whether a court may entertain an appeal challenging the exercise of discretion by another court

Holding

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.

Reasoning

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.

p. 3
03

Whether the nugatory limb of Rule 5(2)(b) needed consideration

Holding

Having found the intended appeal not arguable, the Court declined to consider the nugatory limb.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 28th January 2015 is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 47

Cases cited (6)

  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    (1988) KLR 838
  • J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd.
    [1982 – 88] 1 KAR 1088
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited
    Civil Application No. 98 of 2002 (unreported)
  • Kanwal Sarjit Singh Dhiman -vs- Keshavji Jivraj Shah
    [2008] eKLR
  • Western College of Arts & Applied Sciences v. Ornaga & Others
    (1976) KLR 63
  • Teachers Service Commission v- Kenya National Union of Teachers & 3 others
    SC Application No. 15 of 2015
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.