National Bank of Kenya Limited v Leonard Gethoi Kamweti [2017] KECA 352 (KLR)
The bottom line
#The Court of Appeal paused collection of a Kshs.8 million unfair termination award against National Bank, but only because the bank agreed to deposit the money in a joint account.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was arguable, chiefly on the claim that the award of 12 months' salary amounted to double compensation given payments made for early retirement
The court considered the draft memorandum of appeal, which raised the contention that the respondent had already received over Kshs.16 million for early retirement and that admitting a tape recording of a Directors' meeting was wrongful. Applying the settled standard that even one arguable point suffices, the court was satisfied the appeal was arguable without expressing definitive views at that interlocutory stage.
Nugatory value of the appeal
The appeal would be rendered nugatory because the decretal sum was high, refundability was doubtful, and the respondent's claimed unencumbered property security was not proved; a joint interest-earning deposit secured both parties
The court weighed the rival submissions. The respondent asserted the applicant held title to unencumbered property valued at Kshs.25 million as security, but produced no evidence. The applicant offered to deposit the decretal sum in a joint interest-earning account. Given the size of the award and the difficulty of recovery if the appeal succeeded, the nugatory limb was satisfied on the applicant's deposit undertaking.
Legal principles established
#- On a rule 5(2)(b) application the applicant must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
- Demonstration of even one arguable point suffices on the arguability limb
- Whether an appeal will be rendered nugatory is assessed case by case; long delay or inconvenience in recovering money already paid out is a relevant consideration
Court orders
#- 1.Stay of execution of the judgment of Wasilwa, J. dated 12th October 2016 pending hearing and determination of the intended appeal
- 2.The applicant shall, within 14 days, deposit the sum of Kshs.8,050,728/= in an interest earning account in the joint names of the applicant and the respondent with any reputable bank of the respondent's choice; in default the stay shall stand discharged
- 3.The applicant shall file the intended appeal within 60 days from the date of the ruling
- 4.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Cause No. 273 of 2014
- 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 Bank of Kenya Limited v Leonard Gethoi Kamweti [2017] KECA 352 (KLR)", Case Analysis (2017). Civil Application No. NAI 34 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/352/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.