Kenya Commercial Bank Limited v Robert Kimutai Korir
The bottom line
#Kenya's Court of Appeal paused KCB's Kshs.898,542 unfair dismissal payout because the former employee showed no ability to repay it if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on the grounds concerning compensation awarded despite a finding of valid reason for termination.
The Court applied the settled principle that a single arguable point suffices. Examining the intended grounds of appeal, particularly the sequence of events leading to the respondent's dismissal and the award of compensation despite a finding of valid and justifiable reason, the Court entertained no doubt that the appeal was arguable.
Nugatory-ness and burden of proving ability to refund the decretal sum
Once the applicant reasonably asserts the respondent cannot repay or his means are unknown, the evidential burden shifts to the respondent to demonstrate ability to refund; failure renders the appeal nugatory if successful.
Relying on ABN AMRO Bank N.V. v Le Monde Foods Limited, the Court held the respondent's position (that the applicant must prove lack of means) was wrong in law. The respondent admitted unemployment and failed to show assets or ability to refund Kshs.893,542, so the appeal would be rendered nugatory without stay.
Legal principles established
#- On a rule 5 application, the applicant must demonstrate that the appeal or intended appeal is not frivolous and that, if successful, it would be rendered nugatory without stay.
- Demonstration of even one arguable point suffices on the arguability limb of a rule 5 application.
- Where an applicant reasonably states that a respondent cannot repay the decretal sum or that his means are unknown, the evidential burden shifts to the respondent to show ability to refund.
Court orders
#- 1.Stay of execution of the trial court's judgment dated 23rd October, 2015 and all its consequential orders pending the hearing and determination of the intended appeal, in terms of prayer 5 of the application
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Industrial Court of Kenya (Employment and Labour Relations Court) at Nairobi
- Industrial Court Cause No. 677 of 2013
- Jurisdiction invoked
- Rules 5, 41, 42, 49 and 75 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Robert Kimutai Korir", Case Analysis (2018). Civil Application No. 60 of 2016 (UR.47 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/861/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.