Olango Onudi v Samuel Okuro & 7 others [2019] KECA 974 (KLR)
The bottom line
#The Court of Appeal refused to suspend an employment ruling against Kisumu County because winning an appeal later could easily undo the harm.
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 intended appeal is arguable and not frivolous
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Threshold conditions for stay of execution pending appeal under Rule 5(2)(b)
The Court must be satisfied both that the applicant has an arguable appeal that is not frivolous, and that the appeal would be rendered nugatory absent a stay; both conditions must coexist
The Court restated the long-established twin test for Rule 5(2)(b) applications, citing Githunguri v Jimba Credit Corporation, J. K. Industries v Kenya Commercial Bank and Reliance Bank v Norlake Investments. The discretion is exercised case by case, and satisfaction of one limb alone is insufficient.
Arguability of the intended appeal
A single arguable issue suffices; the applicant's draft memorandum raised an arguable issue concerning the powers of the County Secretary under the County Government Act
The Court held that at the stay stage it is not for it to examine the merits of the grounds. It is enough that the grounds raise issues requiring analysis and determination, and in this regard one issue is sufficient. The question whether the County Secretary may suspend Chief Officers pending investigations was arguable.
Nugatory aspect - whether the appeal would be rendered worthless without a stay
The applicant failed to establish nugatory impact: the respondents no longer had access to documents and witnesses, and the suspension letters could easily be restored if the appeal succeeded
The undisturbed facts showed two respondents had left employment and the remaining six had been transferred, so the alleged interference with investigations could not occur. Further, reinstatement orders were reversible since the suspension letters could be restored on success of the appeal. The second limb therefore failed, dooming the application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguable appeal test and the nugatory test; both conditions must be met before stay of execution pending appeal is granted
- Whether an appeal would be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages would reasonably compensate the aggrieved party
Court orders
#- 1.Application for stay of execution pending appeal dismissed
- 2.Costs of the application shall be costs in the appeal
- 3.If the appeal is filed, hearing date to be given on priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Kisumu
- ELRC Petition No. 5 of 2018
- Jurisdiction invoked
- Rule 1(2); Rule 5(2)(b) & Rule 41 of the Court of Appeal Rules (application for stay of execution pending appeal)
Relief refused
#Order of stay of execution of the ELRC judgment and orders of 12th April 2018 pending appeal
The applicant satisfied the arguability requirement but failed to demonstrate that the appeal would be rendered nugatory, and both requirements must be met
Costs
The costs of this application shall be costs in the 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.
It should be noted that both conditions must be satisfied.
Whether or not an appeal would be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
It is enough that the grounds raise issues that require analysis and determination by the Court, and in this regard one issue is sufficient.
The costs of this application shall be costs in the appeal. If the appeal is filed, hearing date to be given on priority basis.
Issues in the judgment
#The ruling refers to the applicant's main prayer as seeking to stay orders made on 4th August, 2018, whereas the application and the judgment throughout concern orders of 12th April, 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olango Onudi v Samuel Okuro & 7 others [2019] KECA 974 (KLR)", Case Analysis (2019). Civil Application No. 42 of 2018 (UR 24 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/974/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.