Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application Number E 25 of 2020· [2020] KECA 57 (KLR)

Britam General Insurance Company Kenya Limited v Abigail Khasoa Simiyu [2020] KECA 57 (KLR)

Court of Appeal
18 December 2020
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This is a single-judgment ruling of the Court of Appeal at Nairobi (Okwengu, Gatembu Kairu and Murgor, JJ.A) on a notice of motion dated 21st July 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules by Britam General Insurance Company Kenya Limited, seeking stay of execution of the judgment of the Employment and Labour Relations Court (Wasilwa, J.) delivered on 28th May 2020, which upheld a claim for wrongful termination by the respondent and awarded her Kshs.8,558,383.72 comprising notice pay, accrued leave, compensation for unlawful termination, pension dues, costs and interest. The applicant, which learned of the online judgment on 6th July 2020 owing to Covid-19 pandemic conditions, argued its intended appeal was arguable - contending the termination was justified for neglect of duty and that due process was followed - and that the substantial decretal sum would be irrecoverable given the respondent's unknown means, subject to a part payment of Kshs.2,040,103.08. The respondent opposed, arguing late filing of the notice of appeal, an absent draft memorandum, the applicant's financial muscle, and that the amount was a drop in the ocean. The court applied the settled two-limb test for stay: an arguable appeal and the nugatory principle. It declined to determine the competency of the notice of appeal, holding that an ex facie unstuck-out notice suffices. Finding the appeal arguable and the respondent's failure to demonstrate ability to reimburse the decretal sum, the court allowed the application except as regards pension dues, and ordered costs of the application to abide the outcome of the intended appeal. The decision below was not disturbed; this was an interlocutory application.

Key legal issues

#
01

Jurisdiction premised on a filed notice of appeal

Holding

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

Reasoning

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.

p. 2
02

Whether the intended appeal is arguable

Holding

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

Reasoning

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.

p. 2
03

Whether the appeal would be rendered nugatory

Holding

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

Reasoning

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.

p. 2

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. 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. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & others
    [2013] eKLR
  • Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008 [2009] eKLR
  • International Laboratory for Research on Animal Diseases vs. Kinyua
    [1990] KLR 403
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.

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.