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Court of AppealDismissedCivil Application No. 42 of 2014 (UR 37/14)· [2015] KECA 579 (KLR)

Pride-Inn Hotel & Conferencing v Diana Amayi [2015] KECA 579 (KLR)

Court of Appeal of Kenya
3 July 2015
Martha Karambu KoomeM. K. KoomeHOH. M. OkwenguGKG. B. M. Kariuki
1,514 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause payment of a hotel's court-ordered debt because it failed to show both required conditions for a stay were met.

What this practically means

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Executive summary

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Diana Amayi obtained a judgment in the Industrial Court at Mombasa (Makau, J.) against her former employer, Pride-Inn Hotel & Conferencing, for Kshs. 390,828 plus costs and interest upon termination of her employment. The hotel filed a Notice of Appeal and then moved the Court of Appeal at Malindi under Section 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b), 42 and 47 of the Court Rules for a stay of execution pending appeal. It argued that its appeal was arguable, particularly on the ground that the Industrial Court denied it a fair hearing by refusing an adjournment occasioned by insecurity around the Saba Saba rally of 7th July 2014 and by disposing of the claim by written submissions rather than oral evidence, and that execution would render the appeal nugatory by causing substantial loss and triggering a floodgate of litigation. It offered security. The respondent opposed, relying on Section 17(2) of the Industrial Court Act 2011 (appeals lying only on matters of law) and on the settled twin-condition test for stay. Applying the Chris Munga N. Bichage principles, the court found no arguable issue: nothing showed counsel was forced into written submissions, the applicant's compliance with that mode of hearing raised a presumption of consent, no appeal was lodged against the adjournment refusal, and the submissions allegedly ignored were not availed. On the nugatory limb, the court held that a monetary decree repayable on success cannot by itself render an appeal nugatory absent proof the respondent could not refund, and that a feared floodgate of litigation is not a sufficient reason. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Not arguable - allegations of breach of natural justice were unsupported; the applicant complied with the written-submissions mode of hearing and did not appeal the refusal of the adjournment, and failed to avail the submissions it claimed were ignored.

Reasoning

The court found nothing to confirm the claim that counsel was forced into written submissions; no appeal was lodged against the adjournment refusal. Compliance with the mode of hearing raised a presumption of consent. Copies of the written submissions were not provided, so the claim that submissions were ignored was not demonstrated.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

No - the decree is monetary and repayable on success, and a feared floodgate of litigation cannot render an appeal nugatory.

Reasoning

The applicant did not allege or demonstrate that the respondent would be unable to refund the decretal sum if the appeal succeeded. The floodgate concern was rejected because each future case would be dealt with on its own merits.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate both that the appeal is arguable (not frivolous) and that it will be rendered nugatory if stay is not granted; demonstrating only one limb is insufficient.
  • A single arguable issue is sufficient to satisfy the arguability limb.
  • A monetary decree does not by itself render an appeal nugatory where the decree-holder's ability to refund the sum is not challenged.
  • Complying with a mode of hearing (written submissions) ordered by a trial court without objection or appeal against the order amounts to consent to that mode.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A and 3B
  • Court of Appeal RulesRules 5(2)(b), 42 and 47
  • Constitution of Kenya 2010Article 159
  • Industrial Court Act 2011Section 17(2)

Cases cited (2)

  • Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others
    [2013] eKLR
  • The Director Kenya Medical Research Institute v Agnes Muthoni & 35 Others
    Civil Appeal No. 15 of 2011
On appeal from
Industrial Court of Kenya at Mombasa
Industrial Court Cause No. 205 of 2014
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules; Article 159 of the Constitution

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, "Pride-Inn Hotel & Conferencing v Diana Amayi [2015] KECA 579 (KLR)", Case Analysis (2015). Civil Application No. 42 of 2014 (UR 37/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/579/eng@2015-07-03

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