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Court of AppealDismissedCivil Application No. 240 of 2016 (UR 192/2016)· [2017] KECA 761 (KLR)

Patriotic Guards Ltd. v James Kipchirchir Sambu

Court of Appeal
24 February 2017
Martha Karambu KoomeM. K. KoomeGKG. B. M. KariukiSKS. ole Kantai
1,192 words in judgment
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The bottom line

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The Court of Appeal refused to pause a Kshs.3.5 million employment judgment because the employer ignored earlier stay conditions and showed no arguable appeal.

What this practically means

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Executive summary

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The respondent, a former Training Officer of the applicant, obtained a judgment of Kshs.3,568,210 in the Employment and Labour Relations Court before Nzioka wa Makau, J., delivered on 3rd November 2015, in a trial concluded in the applicant's absence. An application to set aside the judgment was dismissed by ruling of 21st December 2015, against which the applicant filed a Notice of Appeal and a substantive appeal (Civil Appeal No. 20 of 2016). The trial court (M. Mbaru, J.) later granted a conditional stay requiring deposit of the entire decretal sum in a joint interest-earning account of the parties' advocates, which condition the applicant never satisfied. The applicant then moved the Court of Appeal under Rule 5(2)(b) for stay of the 21st December 2015 ruling and of the judgment, contending an arguable appeal (mistake of counsel), breach of constitutional rights, and that the appeal would be rendered nugatory, with proclamation of its goods having occurred. The respondent opposed, arguing the applicant could not seek a second stay while armed with the trial court's conditional stay. Applying the settled Trust Bank v Investech principles, the Court found no arguable point demonstrated to the required standard, declined to reach the nugatory limb, and held that with dismissal already having occurred and an appeal preferred, there was nothing to stay; a party holding lower-court stay orders who files a duplicative application may be abusing court process. The Motion was dismissed with costs to the respondent.

Key legal issues

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01

Arguable appeal under Rule 5(2)(b)

Holding

The applicant failed to demonstrate any arguable point in the appeal

Reasoning

The court applied the settled two-limb test from Trust Bank v Investech. Having found the first limb (arguability) unsatisfied, it declined to consider the nugatory limb. The applicant's non-compliance with the conditional stay granted by the trial court, without explanation, weighed against it.

p. 3
02

Effect of existing conditional stay from the trial court

Holding

An applicant who obtained conditional stay orders from the trial court but did not comply cannot obtain a further stay from the Court of Appeal; doing so may amount to abuse of process

Reasoning

The trial court had granted conditional stay requiring deposit of the decretal sum in a joint interest-earning account. The applicant neither complied nor explained the non-compliance, yet sought a parallel stay in the Court of Appeal. The court held the application misplaced since the ruling of 21st December 2015 was already under appeal.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must show an arguable appeal and that the appeal would be rendered nugatory absent stay
  • A party armed with stay orders from a lower court who files a similar application in the Court of Appeal may be abusing court process

Court orders

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  1. 1.The Notice of Motion dated under rules 5(2)(b), 41 and 47 dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 47

Cases cited (1)

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    Civil Application Nai. 258 of 1999 (unreported)

    Enunciation of the principles governing grant of stay of execution pending appeal under Rule 5(2)(b)

On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Cause No. 2535 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patriotic Guards Ltd. v James Kipchirchir Sambu", Case Analysis (2017). Civil Application No. 240 of 2016 (UR 192/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/761/eng@2017-02-24

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