Clerk County Council of Lugari v Josephat Mulongo Wekesa [2019] KECA 725 (KLR)
The bottom line
#Kenya's Court of Appeal paused an employment judgment against Lugari County Council, confirming that applicants for stay need only show an arguable appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable point to canvas on appeal
- 2.Whether the intended appeal, if successful, would be rendered nugatory in the absence of a stay
Key legal issues
#Arguability of the intended appeal
The court was satisfied that the applicant had an arguable point to canvas on appeal.
The court restated the settled test that an applicant for stay pending appeal need only show an arguable point, not one that must necessarily succeed. Applying that threshold, it found the test met without examining the merits in depth.
Nugatory value of the intended appeal
The intended appeal would be rendered nugatory unless a stay was granted.
The court held that the second limb of the rule 5(2)(b) test was satisfied: if the appeal succeeded, execution of the decree in the meantime would render it nugatory. It therefore exercised its discretion in favour of the applicant, while conditioning the stay on filing the record of appeal within 45 days.
Legal principles established
#- An applicant under rule 5(2)(b) need only demonstrate an arguable appeal, not one that must necessarily succeed, together with the nugatory aspect.
Court orders
#- 1.Stay of execution of the judgment and decree of the ELRC at Bungoma dated 1st December 2017 pending appeal granted
- 2.Applicant directed to file the record of appeal within forty five (45) days, failing which the stay orders shall lapse
- 3.Costs shall be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Bungoma
- ELRC No. 1 of 2017 (Formerly Kisumu Cause No. 3 of 2017)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As all that an applicant needs show is that he has an arguable point to canvas on appeal, which is not the same as one that must necessarily succeed, we are satisfied on that ground.
We think also that the intended appeal, if successful, may be rendered nugatory unless we exercise our discretion in favour of granting the stay orders sought. We grant them.
we direct that it file the record of appeal within forty five (45) days of today failing which these stay orders shall lapse. Costs shall be in the intended appeal.
Issues in the judgment
#The ruling does not expressly state the statutory or rule basis of the application; the jurisdiction is inferred from the nature of the application (stay of execution pending appeal) and is not quoted verbatim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clerk County Council of Lugari v Josephat Mulongo Wekesa [2019] KECA 725 (KLR)", Case Analysis (2019). Civil Application No. 86 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/725/eng@2019-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.