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Court of AppealPartially AllowedCivil Application No. 299 of 2014 (UR 223/2014)· [2015] KECA 603 (KLR)

Kenya Medical Research Institute (KEMRI) v Abel Marcel Okoth Okello [2015] KECA 603 (KLR)

Court of Appeal
3 July 2015
1,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal stopped KEMRI from having to pay a Sh2.5 million award now, because the former employee might not repay it if the appeal succeeds.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Githinji, Visram and Mwilu, JJ.A) on a Rule 5(2)(b) application by KEMRI for stay of execution of a decree of the Industrial Court (Maureen Onyango, J.) pending an intended appeal. The respondent had sued for damages for unfair and unlawful termination of a one-year employment contract. The Industrial Court heard his claim on 7th November 2012 in KEMRI's absence - KEMRI's counsel deponed that she attended court but the case was not listed in the cause list, and she left after waiting 30 minutes - and entered ex parte judgment for shs. 1,802,928.24. The Industrial Court dismissed KEMRI's application to set aside the judgment, holding its counsel reckless and negligent and its defence spurious, and also dismissed KEMRI's application for stay. Before the Court of Appeal, KEMRI blamed the registry's failure to list the case and complained that the judge failed to exercise her discretion judicially and breached natural justice. Applying the twin Rule 5(2)(b) test, the court found the intended appeal undoubtedly arguable, raising weighty issues, and held that execution of a decretal sum now about shs. 2.5 million would render any successful appeal nugatory because the unemployed respondent did not demonstrate ability to refund. It refused the respondent's request for a deposit condition, reasoning that KEMRI, a State Corporation, could pay if the appeal failed. The application was allowed: execution was stayed pending the intended appeal, with costs of the application to be costs in the appeal. The decision binds subordinate courts and tribunals on the twin test for such stay applications.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found the appeal raises weighty issues and is undoubtedly arguable without examining the draft grounds in detail to avoid pre-empting the appeal.

Reasoning

The court considered the supporting affidavit, the ruling of the Industrial Court and the eight draft grounds of appeal. It declined detailed examination to avoid pre-empting the intended appeal or embarrassing the court that would hear it, but was satisfied the appeal raises weighty issues and is arguable.

p. 2
02

Whether the appeal would be rendered nugatory if execution proceeded

Holding

Yes - the decretal sum of about shs. 2.5 million is substantial and the respondent, having lost his employment, did not demonstrate ability to refund it if the appeal succeeded.

Reasoning

The respondent did not say in his replying affidavit that he was in gainful employment or able to refund the decretal amount. Execution would therefore likely cause substantial loss rendering a successful appeal nugatory, justifying a stay pending the intended appeal.

p. 3
03

Whether the stay should be conditional on deposit of the decretal sum

Holding

No deposit condition was imposed because the applicant is a State Corporation capable of paying if the appeal is dismissed.

Reasoning

The respondent sought a deposit condition, but the court held there was no justification for it given the applicant's status and financial capacity as a State Corporation, and granted an unconditional stay of execution pending the intended appeal.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the application is not allowed, the appeal if successful would be rendered nugatory.
  • Where a successful appellant would suffer substantial loss rendering the appeal nugatory, and the respondent cannot refund the decretal amount, execution should be stayed; a deposit condition is unwarranted against a State Corporation able to pay.

Court orders

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  1. 1.Execution of the decree given on 19th March, 2013 is stayed pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
On appeal from
Industrial Court of Kenya
Industrial Cause No. 1800 of 2011
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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Cite this brief

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Cite this brief

Caselaw, "Kenya Medical Research Institute (KEMRI) v Abel Marcel Okoth Okello [2015] KECA 603 (KLR)", Case Analysis (2015). Civil Application No. 299 of 2014 (UR 223/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/603/eng@2015-07-03

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