Felix Odhiambo Owuor v Electoral Institute For Sustainable Democracy In Africa (EISA) [2020] KECA 444 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot freeze funds or 'stay' a judgment that simply dismissed your case.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay can issue where the trial court delivered a negative order
Prayers for stay of the judgment and for maintenance of the status quo could not be granted because the ELRC dismissed the claim and issued no positive order capable of being stayed
The court reiterated that under rule 5(2)(b) only three orders are available: stay of execution, stay of proceedings, or injunction. Since the ELRC merely dismissed the appellant's claim, there was nothing to execute or stay. Relying on Western College of Arts and Applied Sciences v Oranga, a negative order cannot be stayed, so both the stay prayer and the status quo ante prayer failed.
Whether the intended appeal is arguable
The appeal is arguable; an arguable appeal need not succeed, only sustain an argument
Applying the settled Kang'ethe Kinyanjui principles, the court examined the appellant's grounds of appeal and found them capable of sustaining argument. The first limb of the rule 5(2)(b) test was therefore satisfied, though this alone did not entitle the appellant to the orders sought.
Whether the appeal would be rendered nugatory if the funds at NIC Bank were not frozen
The nugatory limb was not satisfied; the funds are held in trust for donors and the respondent still operates in Kenya
The respondent's Treasurer deponed that it remains in operation in Kenya and does not intend to relocate. The funds sought to be frozen are held in trust for various donors and are earmarked for specific donor projects. The court therefore could not injunct the respondent from utilising the funds, and the appeal would not be rendered nugatory if the orders were withheld.
Legal principles established
#- Under rule 5(2)(b) of the Court of Appeal Rules, the Court can only grant three orders: stay of execution, stay of further proceedings, or an order of injunction; an applicant must show the appeal is arguable and that if successful it would be rendered nugatory absent the orders
- A negative order, such as an outright dismissal of a claim, cannot be stayed
- An arguable appeal is not one that must succeed, but one that can sustain an argument and is not frivolous
Court orders
#- 1.The application dated 4th May 2020 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 2445 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Felix Odhiambo Owuor v Electoral Institute For Sustainable Democracy In Africa (EISA) [2020] KECA 444 (KLR)", Case Analysis (2020). Civil Appeal No. 104 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/444/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.