New Kenya Co-operative Creameries Ltd v Olgha Auma Adede [2015] KECA 406 (KLR)
The bottom line
#The Court of Appeal can grant a stay even after the lower court refused one — Kenyan employers losing at trial still have a real second chance.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal may entertain a Rule 5(2)(b) stay application after the trial court refused a similar application
Yes; the jurisdiction is original and the trial court's refusal is irrelevant.
The court held that its jurisdiction under Rule 5(2)(b) is both original and discretionary. What the applicant must show is satisfaction of the two principles - arguability and nugatory-ness. The applicant's failure before the trial court has no bearing on the exercise of this Court's independent jurisdiction under the rule.
Whether the intended appeal was arguable
Yes; the draft grounds on gratuity entitlement and general damages raised issues of law capable of canvass on appeal.
The draft memorandum of appeal questioned the award of gratuity of Kshs.739,350 to an employee who had served 9 months of a contract requiring 3 years for gratuity, and the award of general damages for unfair dismissal not envisaged by the contract. These were issues of law which the applicant was entitled to canvass in the intended appeal.
Whether the intended appeal would be rendered nugatory without stay
Yes; the respondent did not demonstrate ability to refund the decretal sum of Kshs.2,329,350.
The respondent had not shown or demonstrated ability to refund the substantial decretal sum if the appeal succeeded. Her assertion of the applicant's size and assets reversed the correct principle, which requires demonstration of the nugatory aspect by the party resisting stay on that basis. Stay was therefore warranted.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory unless stay is granted.
- The Court of Appeal's jurisdiction under Rule 5(2)(b) is original; a refusal of stay by the trial court has no bearing on the exercise of that jurisdiction.
- On the nugatory-principle, it is the applicant who benefits from demonstrating the nugatory aspect; the burden is not shifted to the respondent.
Court orders
#- 1.Stay of execution of the lower court's judgment pending hearing and determination of the intended appeal
- 2.Costs of the Motion to abide the intended appeal
- On appeal from
- Industrial Court of Kenya (Employment and Labour Relations Court)
- Industrial Cause No. 37 of 2011
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Kenya Co-operative Creameries Ltd v Olgha Auma Adede [2015] KECA 406 (KLR)", Case Analysis (2015). Civil Application No. NAI 316 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/406/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.