Kenya Power & Lighting Company Limited v Cyrus Ireri Daniel [2017] KECA 58 (KLR)

Court of Appeal of Kenya

20 December 2017

GKG. B. M. Kariuki FSF. Sichale SKS. ole Kantai

1,214 words in judgment

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The bottom line

Kenya's Court of Appeal paused payment of an employment award against Kenya Power because the former employee might not repay the money if the appeal succeeds.

What this practically means

Executive summary

This was a single-judge-reciprocated interlocutory application by Kenya Power & Lighting Company Limited under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a judgment of the Employment and Labour Relations Court at Nyeri (Ongaya, J.) dated 9th June 2017 in ELRC Cause No. 197 of 2016. The ELRC had declared the summary dismissal of the respondent wrongful, unfair and unlawful and ordered reinstatement as Artisan Mate III with effect from 15th June 2017 with full benefits, treating the intervening period as leave without pay; alternatively, payment of eight months' gross salary totalling Kshs 1,232,834.40, with costs to the respondent. The applicant, which had filed Civil Appeal No. 121 of 2017, argued the appeal was arguable on the interpretation of Sections 41, 44 and 49 of the Employment Act, and that the appeal would be rendered nugatory because the position had been filled and the respondent could not repay any monies if the appeal succeeded. The respondent, who had been acquitted on appeal of the criminal conviction leading to his dismissal, opposed the application. Applying the settled twin criteria for Rule 5(2)(b) relief, the Court found the appeal arguable and was satisfied the respondent might not recoup the applicant upon payment. The Court allowed the application, granted the stay prayed for, and ordered the costs of the application to abide the outcome of the appeal. The decision below was not disturbed; the ruling preserves the status quo pending the intended appeal.

Key legal issues

Arguability of the intended appeal

Holding

The appeal was arguable, raising issues of law including whether the ELRC Judge correctly interpreted Sections 41, 44 and 49 of the Employment Act.

Reasoning

The court declined to say much on the merits to avoid embarrassing the bench that would hear the appeal, but was satisfied from the draft memorandum of appeal that issues of law, notably the correct interpretation of Sections 41, 44 and 49 of the Employment Act concerning the termination, were arguable.

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Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory-prong was satisfied because, upon execution and payment, the respondent may not be able to recoup the applicant if the appeal succeeds.

Reasoning

The court observed that if the money ordered by the E&LR Court were paid over, there was no guarantee the respondent could repay it were the appeal to succeed; counsel had pointed out the respondent had not disputed inability to repay, and reinstatement was said to be untenable as the position had been filled.

p. 2

Legal principles established

To succeed in an application under Rule 5(2)(b), an applicant must demonstrate both that the appeal is arguable and that, unless stay is granted, the appeal if successful would be rendered nugatory.

Court orders

1.Stay of execution of the judgment and orders of the Employment and Labour Relations Court at Nyeri in ELRC Cause No. 197 of 2016 pending the hearing and determination of the intended appeal (Civil Appeal No. 121 of 2017)
2.Costs of the application to abide the outcome of the appeal

Authorities

Legislation

Court of Appeal RulesRule 5(2)(b)
Employment ActSections 41, 44 and 49
Penal CodeSection 313

On appeal from: Employment and Labour Relations Court at Nyeri; E. & L. R. Cause No. 197 of 2016
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya Power & Lighting Company Limited v Cyrus Ireri Daniel [2017] KECA 58 (KLR)", Case Analysis (2017). Civil Application No. 73 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/58/eng@2017-12-20

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