Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 59 of 2018 (UR 51/2018)· [2018] KECA 624 (KLR)

Ben Chikamai & another v Peter Macithi Muigai & 2 others [2018] KECA 624 (KLR)

Court of Appeal
11 May 2018
EGE. M. GithinjiSKS. Gatembu KairuKMK. M'inoti
1,829 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal paused an order to appoint a new KEFRI board because a board already existed, protecting the appeal from being pointless.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Githinji, Gatembu Kairu and M'inoti JJ.A.) on an application under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment and decree of the Employment and Labour Relations Court (Wasilwa, J.) dated 31st January 2018, which had nullified Ben Chikamai's appointment as Chief Executive Officer of KEFRI and ordered the appointment of a Board of Directors within six months, on findings that the appointment breached Mwongozo and constitutional values and that no Board was in office. By the hearing date, the 1st applicant's term had expired on 30th April 2018, so counsel properly abandoned the stay as regards him, confining the application to the order directing appointment of a Board. The applicants argued the appeal was arguable on retrospective application of Mwongozo, legitimate expectation, and the existence of a Board in office since 30th May 2016, and that execution would cause confusion and violate accrued rights. The 1st respondent did not oppose; the 2nd and 3rd respondents supported the application. Applying the twin rule 5(2)(b) tests, the Court found the appeal arguable - particularly whether the judge ignored evidence that a Board was already in office - and held that appointing a Board while one existed would render the appeal nugatory. The application succeeded: execution of the decree was stayed to the extent that it directed appointment of a Board for KEFRI, with costs to abide the outcome of the intended appeal.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was arguable, particularly on whether the ELRC judge ignored evidence that a Board was already in office.

Reasoning

The Court found the intended grounds non-frivolous, especially the claim that the judge directed appointment of a Board while a validly appointed Board existed since 30th May 2016. It reiterated that even one bona fide point suffices and, absent a replying affidavit, the applicants' averments stood uncontroverted.

p. 2
02

Nugatory value of the intended appeal

Holding

Execution of the order to appoint a Board would render the appeal nugatory by occasioning confusion and irreparable loss.

Reasoning

The Court reasoned that appointing a Board where one already existed would create confusion and violate accrued legal rights, with serious ramifications for KEFRI. It held the overriding consideration is preventing a successful party's victory from becoming a pyrrhic victory, and leaned in favour of an order avoiding irreparable damage pending appeal.

p. 2

Legal principles established

#
  • To obtain stay of execution under rule 5(2)(b), an applicant must satisfy the Court that the intended appeal is arguable and that it will be rendered nugatory if it succeeds in the absence of the order.
  • An arguable appeal is one raising even a single bona fide point deserving consideration; it need not ultimately succeed.
  • The nugatory test is case-specific, the overriding consideration being that a successful party's victory is not rendered pyrrhic or irreversible.

Court orders

#
  1. 1.Stay of execution of the decree of the Employment and Labour Relations Court dated 31st January 2018 to the extent that it directs the appointment of a Board of Directors for KEFRI
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

#

Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 232
  • Code of Governance for State Corporations (Mwongozo)
  • Government Circular Ref. No. OP/CAB.9/1A of 23rd November 2010

Cases cited (3)

  • Jaribu Holdings Ltd v. Kenya Commercial Bank Ltd
    CA. No. 314 of 2007
  • Kenya Tea Growers Association & Another v. Kenya Planters & Agricultural Workers Union
    CA. No. Nai. 72 of 2001
  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    CA No. 31 0f 2012
On appeal from
Employment and Labour Relations Court at Nairobi
Pet No. 75 of 2016
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, "Ben Chikamai & another v Peter Macithi Muigai & 2 others [2018] KECA 624 (KLR)", Case Analysis (2018). Civil Application No. 59 of 2018 (UR 51/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/624/eng@2018-05-11

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