National Hospital Insurance Fund Board of Management v Joab Indeche Wakhu [2017] KECA 46 (KLR)
The bottom line
#The Court of Appeal paused collection of a Kshs 1.9 million unfair dismissal award against NHIF because the money might be impossible to get back if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The application was arguable; counsel for the respondent conceded arguability and the applicant raised arguable legal points including conflict of interest and the duty to disclose it.
Counsel for the applicant identified arguable grounds in the proposed memorandum of appeal, including whether the trial court erred in finding unfair dismissal and in holding that the respondent was not under a duty to disclose a conflict of interest arising from his wife's and his own directorship in a clinic. Counsel for the respondent expressly conceded that the intended appeal was arguable, so the first limb of the Rule 5(2)(b) test was satisfied.
Whether the appeal would be rendered nugatory if stay was not granted
The appeal would be rendered nugatory because the applicant feared it could not recover the decretal sum of Kshs 1,905,000 from the respondent, who failed to demonstrate ability to refund.
The applicant contended that the decretal sum was huge and that there was no indication of the respondent's means to refund if the appeal succeeded. The court held that this fear had not been waylaid and that the evidential burden shifted to the respondent to show ability to refund, which was not discharged. If the sum could not be recovered, a successful appeal would be rendered nugatory and purposeless, justifying stay in the interest of justice.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if stay is denied; where the decretal sum may be unrecoverable, failure to grant stay renders the appeal nugatory
- Once the applicant demonstrates fear of inability to recover the decretal sum, the evidential burden shifts to the respondent to show ability to refund, and must be discharged
Court orders
#- 1.Stay of execution of the judgment of the Employment and Labour Relations Court dated 21st July 2017 in Cause No. 227 of 2016 pending the hearing and determination of the intended appeal, in terms of prayer (c) of the Notice of Motion dated 9th November 2017
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nyeri
- E. & L. R. C. Cause No. 227 of 2016
- 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, "National Hospital Insurance Fund Board of Management v Joab Indeche Wakhu [2017] KECA 46 (KLR)", Case Analysis (2017). Civil Application No. 122 of 2017 (UR 89/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/46/eng@2017-12-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.