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Court of AppealDismissedCivil Application No. NAI. 107 of 2016· [2016] KECA 291 (KLR)

David Engineering Limited v Nathan Ogada Atiagaga [2016] KECA 291 (KLR)

Court of Appeal
29 July 2016
PKP. Kihara KariukiFSF. SichaleSKS. ole Kantai
3,181 words in judgment
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The bottom line

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The Court of Appeal refused to pause an employment judgment against David Engineering because its appeal had no arguable point after its lawyer missed the hearing.

What this practically means

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Executive summary

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This was a single-judge-application ruling of the Court of Appeal at Nairobi under Rule 5(2)(b) of the Court's Rules, read with Sections 3A and 3B of the Appellate Jurisdiction Act, in which David Engineering Limited sought a stay of execution of the judgment and orders of the Employment and Labour Relations Court (Monica Mbaru, J) of 21st September 2015, as elaborated in a ruling of 2nd March 2016 refusing to set aside the ex parte judgment entered against it in Nathan Ogada Atiagaga's employment claim. The applicant's advocates admitted they were served with a hearing notice for 27th July 2015 but failed to diarize it, and the claim proceeded ex parte. Applying the settled twin principles for Rule 5(2)(b) applications - arguability and nugatory effect - the Court, coram Kihara Kariuki (PCA), Sichale and Kantai, JJ.A., held the intended appeal was not arguable: the trial judge had considered the defence and the explanations for non-attendance and had not misdirected herself, and an advocate who learned a hearing had occurred yet did not seek to participate before judgment could not rely on a failure to diarize as an arguable ground. The Court therefore did not reach the nugatory limb and dismissed the motion with costs to the respondent. The ruling is binding on the Employment and Labour Relations Court and High Court as to the application of the twin Rule 5(2)(b) criteria and on the weight given to counsel's diarization failures.

Key legal issues

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01

Arguability of the intended appeal

Holding

Failure to diarize a hearing date by an advocate who later became aware that a hearing had taken place before judgment but did not seek to participate is not an arguable point; the judge's discretion in refusing to set aside the ex parte judgment was not shown to have been wrongly exercised.

Reasoning

The court perused the draft memorandum of appeal and found the claim that the judge ignored the defence was unfounded: the judge had considered and rejected the defence both in the judgment and in the ruling. The judge had exercised judicial discretion on the reasons advanced for non-attendance and found them invalid. At the preliminary stage, the Court could not perceive that the discretion was wrongly exercised, so no arguable point existed and the motion failed without reaching the nugatory limb.

p. 5

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must first demonstrate that the appeal or intended appeal is arguable, and secondly that, if successful, it would be rendered nugatory unless stay is granted.
  • The Court of Appeal exercises a discretionary jurisdiction on Rule 5(2)(b) applications which must be exercised judicially, and where the first limb (arguability) fails, the court need not consider the nugatory limb.

Court orders

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  1. 1.The Motion for stay of execution pending appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Civil Procedure RulesOrder 19

Cases cited (5)

  • Githiaka v Nduriri
    [2004] 2 KLR 67
  • Ruben and 9 Others v Nderito and Another
    [1989] KLR 455
  • Stanley Munga Githunguri versus Jimba Credit Corporation Limited
    Civil Application Nai 161 of 1985
  • Bob Morgan Systems Limited & Another versus Jones
    [2004] 1 KLR 194
  • Yellow Horse Inns Limited v A.A. Kawir Transporters Limited and 4 Others
    [2014] eKLR
On appeal from
Employment and Labour Relations Court at Nairobi
ELR Cause No. 419 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act

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, "David Engineering Limited v Nathan Ogada Atiagaga [2016] KECA 291 (KLR)", Case Analysis (2016). Civil Application No. NAI. 107 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/291/eng@2016-07-29

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