Britam General Insurance Company Kenya Limited v Abigail Khasoa Simiyu [2020] KECA 57 (KLR)
The bottom line
#Kenya's Court of Appeal paused payment of a Sh8.5 million wrongful dismissal award to a former employee, except her pension dues.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction premised on a filed notice of appeal
For the Court to be seized of jurisdiction to entertain a Rule 5(2)(b) application, a notice of appeal must be on record; a challenge to its competence is a matter for a separate challenge, and an ex facie unstuck-out notice suffices at this stage
The court held that jurisdiction to entertain a stay application requires a notice of appeal in respect of the decision sought to be stayed. The respondent argued the notice was incompetent, but the court declined to determine that issue then, treating it as best addressed in a separate challenge, and noted that the notice had not been struck out.
Whether the intended appeal is arguable
The intended appeal was arguable, the applicant having set out seven grounds including that sufficient reasons existed for terminating the respondent's employment and due process was followed
Applying the test that an arguable appeal need not succeed but must not be frivolous, the court found that the seven grounds raised, including whether the Judge erred in finding the termination wrongful, were capable of full argument and therefore met the threshold.
Whether the appeal would be rendered nugatory
The judgment amount was substantial and the respondent, beyond asserting the applicant's substantial means, did not demonstrate an ability to reimburse the decretal amount if the appeal succeeded, so the nugatory threshold was met
The court applied the principle from International Laboratory for Research on Animal Diseases v Kinyua that where impecunity of the respondent is alleged, the onus shifts to the respondent to rebut by evidence. The respondent's assertion that the amount was a drop in the ocean for the applicant did not discharge that onus.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that, if the prayer for stay is declined, the appeal, if successful, will be rendered nugatory
- An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court and is not frivolous
- Where an applicant alleges that an appeal will be rendered nugatory on account of a respondent's impecunity, the onus shifts to the respondent to rebut that claim by evidence
Court orders
#- 1.Stay of execution of the judgment of the ELRC delivered on 28th May 2020, except the order directing payment of pension dues to the respondent, pending hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELC Cause No. 2600 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Bomet & 2 others v Margaret Chebet & 2 others[2024] KECA 541 (KLR)17 May 2024applied
- Monarch Insurance Company Limited v Ibrahim & 5 others (Civil Application E054 of 2023) [2024] KECA 53 (KLR)[2024] KECA 53 (KLR)2 Feb 2024applied
- David Kimengere Waititu & another v Angela Wairimu Gethi & another [2021] KEELC 1121 (KLR)[2021] KEELC 1121 (KLR)4 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Britam General Insurance Company Kenya Limited v Abigail Khasoa Simiyu [2020] KECA 57 (KLR)", Case Analysis (2020). Civil Application Number E 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/57/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.