National Bank of Kenya Limited v Loenard G. Kamweti [2015] KECA 660 (KLR)
The bottom line
#Kenya's Court of Appeal paused an employment court case, confirming that stopping proceedings requires showing both an arguable appeal and real prejudice if the case continues.
What this practically means
#Executive summary
#Key legal issues
#The dual-limb test under rule 5(2)(b) of the Court of Appeal Rules
The purpose of a stay under rule 5(2)(b) is to preserve the substratum of the appeal, and both the arguability and nugatory limbs must be demonstrated for an order to issue.
The court restated the settled principles from Republic v Kenya Anti-Corruption Commission, Reliance Bank and Githunguri: the applicant must show an arguable appeal and that the appeal would be rendered nugatory if stay is refused. Demonstrating only one limb does not avail the applicant. The discretion is unfettered but must be exercised judicially.
Arguability of the intended appeal
Questions of jurisdiction and the interpretation of section 87 of the Employment Act vis-à-vis section 12 of the Industrial Court Act are arguable issues.
The applicant contended the High Court judge misapplied section 87 of the Employment Act and that matters arising after cessation of employment fall outside the Employment and Labour Relations Court. The court held these are arguable issues, particularly where matters arising during and after a contract of service are both in issue, and noted jurisdiction is a central issue without which a court acts in vain (Owners of the Motor Vessel 'Lillians').
The nugatory aspect
If the suit proceeded before a court ultimately found to lack jurisdiction, the success of the appeal would be rendered nugatory because those proceedings would amount to nothing.
The Employment and Labour Relations Court is a specialised court under Article 162(2)(a) of the Constitution. If the intended appeal succeeded on jurisdiction, the entire suit would have been determined by a court without jurisdiction, rendering the appeal nugatory. The court also invoked section 3B(c) of the Appellate Jurisdiction Act to justify determining jurisdictional questions first for efficient use of judicial time.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability limb and the nugatory limb; satisfying only one is insufficient.
- An arguable appeal need not be one that must succeed; a single arguable point raising an issue meriting consideration suffices.
- Whether an appeal will be rendered nugatory depends on whether what is to be stayed is reversible or compensable in damages.
- Proceedings before a court lacking jurisdiction amount to nothing; jurisdictional questions should be determined before further proceedings.
Court orders
#- 1.Stay of any further proceedings in Industrial Cause No. 1965 of 2014 before the Employment and Labour Relations Court pending the lodging, hearing and determination of the intended appeal
- 2.Costs of the application awarded to the applicant
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Civil Suit No. 370 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; section 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya Limited v Loenard G. Kamweti [2015] KECA 660 (KLR)", Case Analysis (2015). Civil Application No. Nai. 14 of 2015 (UR 14/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/660/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.