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Court of AppealDismissedCivil (Appeal) Application No. NAI. 104 of 2020· [2020] KECA 200 (KLR)

Ws Insight Limited v Adam Miller

Court of Appeal
20 November 2020
RNR. NambuyeDMD.K. MusingaAMA.K. Murgor
922 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an employment case, saying WS Insight's challenge was premature because the lower court had not yet ruled on jurisdiction.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by WS Insight Limited seeking a stay of proceedings in Employment and Labour Relations Cause No. 1393 of 2017 (Adam Miller v WS Insight Limited), pending the hearing and determination of an intended appeal against the ruling of M. Onyango, J. delivered on 12th May 2020, which dismissed the applicant's preliminary objection challenging the ELRC's jurisdiction. The applicant argued that the dispute disclosed no employer/employee relationship, sought to enforce an illegal contract, and that allowing the claim to proceed would subject it to a court without jurisdiction, rendering the intended appeal nugatory. The respondent countered that no grounds of appeal or nugatory-ness had been demonstrated, that the trial court had merely deferred the jurisdictional question to trial, and that the respondent would suffer greater prejudice from a stay. The Court of Appeal (Nambuye, Musinga & Murgor, JJ.A.) restated the two-limb test: the applicant must show both an arguable appeal and that the appeal would be rendered nugatory absent a stay, failing one limb being fatal. The Court held that the trial judge had not determined jurisdiction at all, having concluded that the intricate issues of law and fact required determination after trial; consequently no arguable issue had arisen at that stage. The first limb failing, the second limb did not fall for consideration. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether an arguable appeal was demonstrated where the trial court had deferred determination of jurisdiction to trial

Holding

No arguable issue arose because the trial judge did not determine jurisdiction; the question remained open for trial, so the first limb of the rule 5(2)(b) test failed.

Reasoning

The applicant's complaint was that the ELRC lacked jurisdiction over a dispute not founded on an employer/employee relationship. However, the Court found that the learned judge had not ruled on jurisdiction; she held that given the intricate issues of law and fact, jurisdiction would be determined after the parties adduced evidence. Since the jurisdictional question remained undetermined, no arguable point for appeal had crystallised at that juncture, and with the first limb failing, the second limb need not be considered.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory absent stay; satisfying only one limb is insufficient.
  • In determining a rule 5(2)(b) application the Court exercises a distinct jurisdiction which is not an appeal from the trial judge's discretion.

Court orders

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  1. 1.The Notice of Motion dated 27th May 2020 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
Nairobi ELRC No. 1393 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ws Insight Limited v Adam Miller", Case Analysis (2020). Civil (Appeal) Application No. NAI. 104 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/200/eng@2020-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.