Kenyatta University v Beatrice N. Mola [2015] KECA 458 (KLR)
The bottom line
#The Court of Appeal paused collection of a Kshs.3.3 million award against Kenyatta University, but only after the university paid the employee Kshs.1 million upfront.
What this practically means
#Executive summary
#Key legal issues
#The twin principles governing applications under Rule 5(2)(b)
An applicant must demonstrate that the intended appeal is arguable and that the appeal would be rendered nugatory if stay is not granted.
The court restated the established Rule 5(2)(b) test, drawing on Githunguri vs Jimba Credit Corporation (No. 2), J.K. Industries vs Kenya Commercial Bank and Reliance Bank vs Norlake Investments. Both counsel conceded arguability, so the court did not examine the merits of the draft memorandum of appeal, holding that one arguable point suffices.
Arguability of the intended appeal
The intended appeal was arguable on at least two identified points: entitlement to the maximum twelve months' compensation, and whether unlawful termination differs from unlawful or illegal dismissal.
Both counsel conceded the intended appeal was arguable. The court accepted that prima facie identification of a single arguable point satisfies the threshold, without needing to consider the merits of the grounds in the draft memorandum of appeal.
The nugatory aspect and balancing of parties' interests
Given the size of the decretal sum (Kshs.3,343,870/=) and the respondent's apparent lack of means to refund, and because not all awarded items were contested, a conditional stay was the appropriate remedy.
The court weighed the applicant's apprehension that the decretal sum of over Kshs.3 million could not be recovered from the unemployed respondent against the risk of leaving the respondent destitute during the appeal. Because only the twelve months' compensation was contested, it directed payment of a lesser sum as a condition for stay, citing Telkom (K) Limited v John Ochanda.
Nature of a Rule 5(2)(b) application
A Rule 5(2)(b) application is an interlocutory application for preservation of the subject matter to ensure a just and effective determination of the appeal.
Relying on Equity Bank Limited v West Link MBO Limited, the court characterised the jurisdiction as a procedural innovation empowering the Court of Appeal to entertain interlocutory applications for preservation of the subject matter. Filing of a notice of appeal and a draft memorandum of appeal was noted.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable (not frivolous) and that unless a stay or injunction is granted, the appeal, if successful, would be rendered nugatory.
- A single arguable point suffices to meet the arguability threshold under Rule 5(2)(b).
- An application under Rule 5(2)(b) is an interlocutory application designed to preserve the subject matter to ensure a just and effective determination of the appeal.
- The Court of Appeal may grant a conditional stay of execution, balancing the interests of both parties, including conditions requiring payment of part of the decretal sum.
Court orders
#- 1.Conditional stay of execution of the judgment dated 15th April 2015 and any consequential decree arising therefrom, on condition that the applicant pays directly to the respondent Kshs.1,000,000/= within thirty (30) days from the date of the Ruling
- 2.In default of payment, the conditional stay of execution granted shall automatically lapse
- 3.Costs of the application to be in the appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Cause No. 606 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, "Kenyatta University v Beatrice N. Mola [2015] KECA 458 (KLR)", Case Analysis (2015). Civil Application No. 120 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/458/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.