Ronald Kiprotich Tonui v Robert Nyabuto Obwoncha & Another [2017] KECA 94 (KLR)
The bottom line
#The Court of Appeal refused to pause a ruling that barred an MP from holding a union office, because he showed no real harm if elections went ahead.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless stay of execution is granted, the appeal if successful would be rendered nugatory
Key legal issues
#Whether the application met the twin conditions for stay under Rule 5(2)(b)
The application failed on both limbs: the Court expressed scepticism about the arguability of the appeal and found no nugatory aspect or prejudice since the applicant drew no salary or allowances from the position and elections are regularly held.
The Court declined to delve into the merits, noting the appeal concerns interpretation of Articles 77 and 260 of the Constitution on whether an MP is a full-time State Officer. It found the applicant did not elaborate on any prejudice, earned nothing from the KUPPET position, and that if the appeal succeeded, an election could simply be directed. The discretionary test in Trust Bank and Butt was thus not satisfied.
Whether the applicant suffered prejudice if elections were held as ordered
No prejudice was established; the applicant was a serving MP who drew no salary or allowances from the KUPPET position.
Counsel asserted prejudice if elections for Assistant National Treasurer were held but did not elaborate. The Court observed the applicant earned no salary or allowances from the position and that KUPPET elections are regularly held, so a successful appeal could be remedied by directing an election.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two conditions: that the intended appeal is arguable and that unless stay is granted the appeal, if successful, would be rendered nugatory.
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.No order as to costs, there having been no opposition by the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court of Kenya at Nairobi
- Petition Cause No. 28 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Relief refused
#Stay of execution of the judgment/decree of the ELRC pending the hearing and determination of the appeal
The Court was not satisfied on the twin conditions of arguability and nugatory effect; it was sceptical of the arguability of the appeal and saw no prejudice to the applicant
Costs
No order as to costs - each party to bear their own costs in effect; the Court stated: "As there was no opposition by the respondents, we make no order as to costs."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is instant the application is dismissed. As there was no opposition by the respondents, we make no order as to costs.
a party seeking orders under Rule 5 (2) b of the Court Rules which are discretionary in nature, must satisfy the two conditions; that is the intended appeal is arguable and unless the order of stay is granted, the appeal if successful would be rendered nugatory
Issues in the judgment
#The judgment inconsistently cites the KUPPET Constitution article for the National Executive Board, referring to "Article 8;6" and later "Article 8; 7" for similar propositions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ronald Kiprotich Tonui v Robert Nyabuto Obwoncha & Another [2017] KECA 94 (KLR)", Case Analysis (2017). Civil Appeal No. 311 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/94/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.