Kenya Medical Research Institute (KEMRI) v Abel Marcel Okoth Okello [2015] KECA 603 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the appeal would be rendered nugatory if execution proceeded
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.
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.
Whether the stay should be conditional on deposit of the decretal sum
No deposit condition was imposed because the applicant is a State Corporation capable of paying if the appeal is dismissed.
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.
Legal principles established
#- 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
#- 1.Execution of the decree given on 19th March, 2013 is stayed pending the hearing and determination of the intended appeal
- 2.Costs of the application to be costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.