Naivas Company Limited v Henry C. Langat [2017] KECA 429 (KLR)
The bottom line
#Kenya's Court of Appeal halted collection of a wrongful dismissal award, ruling that an employee convicted of stealing from his employer can still pursue damages pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because it raises the question whether an employee convicted of theft of the employer's property can nonetheless recover damages for unlawful termination.
The court found that the fact of the respondent's conviction for theft was not contested, but the conviction was under appeal. Whether a person convicted of stealing from the employer is entitled to damages for wrongful termination after summary dismissal was a bona fide, non-frivolous point deserving full argument, satisfying the arguability threshold even though success is not guaranteed.
Whether the appeal would be rendered nugatory without stay
Stay was warranted because the respondent's asserted means to refund the decretal sum were unsubstantiated, while he had previously deposed that he was a poor man.
The respondent claimed ownership of property worth Ksh.5 million generating monthly rental income of Ksh.208,000, but produced no supporting documents such as bank statements or tax returns. His earlier affidavit of 23rd October 2014 deposing that he was a poor man and seeking waiver of court fees as a pauper undermined his claim of ability to refund, satisfying the nugatory-prong test.
Legal principles established
#- An applicant under rule 5(2)(b) must show both that the appeal or intended appeal is arguable and that, unless stay or injunction is granted, the success of the appeal will be rendered nugatory; an arguable appeal need not necessarily succeed - it suffices that it deserves to be fully argued, and a single bona fide point suffices.
Court orders
#- 1.An order of stay of execution granted in terms of prayer No. 2 of the Motion dated 2nd March, 2017, pending the lodging, hearing and determination of the appeal
- 2.Costs of the motion to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya (Employment and Labour Relations Court, Nakuru)
- Nakuru E.L.R. Cause No. 231 of 2013
- 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
#Cite this brief
Caselaw, "Naivas Company Limited v Henry C. Langat [2017] KECA 429 (KLR)", Case Analysis (2017). Civil Application No. 27 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/429/eng@2017-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.