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Court of AppealDismissedCivil Appeal No. 104 of 2020· [2020] KECA 444 (KLR)

Felix Odhiambo Owuor v Electoral Institute For Sustainable Democracy In Africa (EISA) [2020] KECA 444 (KLR)

Court of Appeal
7 August 2020
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot freeze funds or 'stay' a judgment that simply dismissed your case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Musinga and Kantai, JJ.A) on an application under rule 5(2)(b) of the Court of Appeal Rules by Felix Odhiambo Owuor, a former Company Director of EISA, seeking a stay of the ELRC judgment of 23rd April 2020 (Onyango, J.) which dismissed his claim for wrongful and unfair termination, together with an order freezing USD 75,686.67 in the respondent's NIC Bank accounts and maintenance of the status quo ante pending his intended appeal. The court restated the settled twin principles: an applicant must show the appeal is arguable and that, if successful, it would be rendered nugatory absent the orders sought. It emphasised that under rule 5(2)(b) the Court may only grant a stay of execution, a stay of proceedings, or an injunction. Because the ELRC had simply dismissed the claim, no positive order capable of being stayed existed; applying Western College of Arts and Applied Sciences v Oranga, a negative order cannot be stayed, defeating the stay and status quo prayers. The court accepted the appeal was arguable but found the nugatory limb unsatisfied: the respondent still operates in Kenya and the funds are held in trust for donors for identified projects. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether a stay can issue where the trial court delivered a negative order

Holding

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

Reasoning

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.

p. 2
02

Whether the intended appeal is arguable

Holding

The appeal is arguable; an arguable appeal need not succeed, only sustain an argument

Reasoning

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.

p. 2
03

Whether the appeal would be rendered nugatory if the funds at NIC Bank were not frozen

Holding

The nugatory limb was not satisfied; the funds are held in trust for donors and the respondent still operates in Kenya

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 4th May 2020 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (2)

  • Stanley Kang’ethe Kinyanjui v Tonny Ketter & 5 Others
    [2013] eKLR
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
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

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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, "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.