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Court of AppealAllowedCivil Application No. Nai. 149 of 2015· [2015] KECA 329 (KLR)

Royal Media Services Limited v Veronica Chepkemoi [2015] KECA 329 (KLR)

Court of Appeal
16 October 2015
KKKihara KariukiMartha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. Mwilu
1,932 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a reinstatement order against Royal Media Services, but only after the company deposits the full award into a joint account.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kihara Kariuki, PCA, Koome and Mwilu, JJ.A) on a notice of motion dated 2nd June 2015 brought under rule 5(2)(b) of the Court of Appeal Rules by Royal Media Services Limited seeking stay of execution of the judgment and decree of Marete, J. of the Employment and Labour Relations Court, which had found the termination of Veronica Chepkemoi's employment as a radio presenter unfair and unlawful and ordered her reinstatement without loss of benefits, together with payment of all emoluments from the date of termination until reinstatement. The court restated the settled two-pronged test for stay pending appeal: the applicant must demonstrate an arguable appeal - a single arguable ground suffices, and the appeal need not be likely to succeed, only raise a reasonable question of law - and that the appeal would be rendered nugatory if stay is refused, assessed by whether what is to be stayed is reversible or whether damages would compensate the successful appellant. The court found the question whether a court may order payment of full salary for a period during which a former employee has not worked arguable, and held that hardship from reinstatement plus uncertainty of refund justified conditional relief. It allowed the application, staying the judgment and decree pending the intended appeal on condition that the applicant deposit the entire decretal sum into an interest-earning joint account within thirty days, with costs of the application to abide the appeal, and the stay to stand vacated in default.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found one arguable point: whether a court can order an employer to pay full salary for a period during which a former employee has not worked, and whether reinstatement was proper where the employment relationship had collapsed.

Reasoning

The applicant argued the judge erred in ordering reinstatement despite the collapsed relationship, and in awarding salary for a period when the respondent was not employed, a remedy said to be outside section 49 of the Employment Act. The court, careful not to embarrass the bench hearing the main appeal, refrained from definitive findings but held the point arguable, satisfying the first principle.

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02

Whether the appeal would be rendered nugatory if stay is denied

Holding

Stay was granted: reinstatement would cause hardship that could be compounded if the appeal succeeded, while salary arrears could be protected by conditional relief requiring deposit of the decretal sum.

Reasoning

The court considered that the respondent resuming work might cause the applicant hardship, especially if the termination were later found fair. Hardship to the respondent could be recompensed by damages. On the money decree, following Reliance Bank, inability to refund is not the only factor, and conditional relief - deposit of the decretal sum in an interest-earning joint account - would best serve the interests of justice.

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Legal principles established

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  • An applicant under rule 5(2)(b) must first show that the intended appeal is arguable, and a single arguable ground suffices.
  • An arguable appeal need not be one that will succeed; it is enough that it raises a reasonable question of law.
  • On the second limb, the court asks whether what is sought to be stayed is reversible or whether damages would reasonably compensate the successful appellant.
  • Where the decree is for payment of money, inability to refund is not the only consideration in the nugatory test; the conflicting claims of both sides must be weighed and conditional relief may be granted.

Court orders

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  1. 1.The judgment and decree of the Employment and Labour Relations Court made on the 5th November 2014 be and is hereby stayed pending the hearing and determination of the intended appeal
  2. 2.Within thirty (30) days, the applicant shall deposit the entire decretal sum into an interest-earning account in the joint names of counsel for both parties in a reputable bank to be agreed, or designated by the Registrar, pending the intended appeal
  3. 3.Upon compliance with the deposit order, the costs of the application shall abide the result of the intended appeal; in default, the stay shall stand vacated and the application dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Employment Actsection 49

Cases cited (6)

  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    (2002) 1 EA 227
  • Transouth Conveyors Ltd v Kenya Revenue Authority & Another
    [2007] eKLR (Civil Application No. 37 of 2007)
  • Retreat Villas Ltd v Equatorial Bank Ltd & 2 Others
    [2007] eKLR (Civil Application No. 40 of 2006)
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR (Civil Appeal No. 46 of 2013)
  • Teachers Service Commission v Sarah Nyanchama Ratemo
    [2014] eKLR (Civil Application No. Nai. 227 of 2013)
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR (Civil Application No. 31 of 2012)
On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Court Cause No. 1923 of 2012
Jurisdiction invoked
Rule 5(2)(b) 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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Royal Media Services Limited v Veronica Chepkemoi [2015] KECA 329 (KLR)", Case Analysis (2015). Civil Application No. Nai. 149 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/329/eng@2015-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.