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Court of AppealPartially AllowedCivil Application No. 112 of 2019· [2020] KECA 446 (KLR)

Kenya Marine Fisheries Research Institute v Ezekiel Nyangoya Okemwa (Civil Application 112 of 2019) [2020] KECA 446 (KLR)

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

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The Court of Appeal stopped execution of a Kshs.70 million unfair dismissal award against KMFRI, but only because it deposits Kshs.36 million as security within 30 days.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, Okwengu and Musinga, JJ.A.) ruled on an application under rule 5(2)(b) of the Court of Appeal Rules by the Kenya Marine Fisheries Research Institute seeking stay of execution of the judgment and decree of the Employment and Labour Relations Court at Mombasa (Rika, J.) of 8th July 2016 in ELRC Cause No. 186 of 2013, and stay of enforcement proceedings in Mombasa Judicial Review No. 5 of 2019. The ELRC had held the applicant's summary dismissal of the respondent unfair and unlawful, awarding Kshs.33,455,592 in salary arrears and Kshs.20,000,000 in damages for unfair and unlawful termination, diminished employability and related violations. The Court applied the settled twin principles from Stanley Kangethe Kinyanjui v Tony Keter & 5 Others: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay. The Court found the appeal arguable on the memorandum of appeal, declined to comment on a pending strike-out application, and held that the colossal decretal sum of over Kshs.70,000,000 would be rendered irrecoverable if execution proceeded, since the respondent did not claim an ability to refund. Balancing the respondent's monetary decree and the applicant's earlier representation of solvency, and noting its failure to comply with the trial court's conditional stay order, the Court granted the stay conditional on the applicant depositing Kshs.36,000,000 in an interest-earning joint account within 30 days, failing which the stay lapses and the applications are deemed dismissed. The applicant was ordered to bear the costs of the application.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court was satisfied, on a perusal of the memorandum of appeal, that the appeal was arguable, without expressing any view on the pending application to strike out the appeal.

Reasoning

The Court applied the settled rule 5(2)(b) principles, requiring an arguable appeal and the nugatory test. On a perusal of the memorandum of appeal, the bench formed the view that the appeal was arguable. It expressly declined to say anything about the respondent's application to strike out the appeal because that application had not yet been argued, confining itself to the threshold arguability assessment.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The colossal decretal sum of over Kshs.70,000,000 justified stay because execution would render the appeal nugatory, given the respondent's stated inability to refund the decretal sum if the appeal succeeded.

Reasoning

The Court weighed the magnitude of the decree (over Kshs.70,000,000) against the respondent's monetary decree and the applicant's prior representation of solvency. It noted the respondent did not claim capacity to refund the decretal sum if the appeal succeeded, so execution would render the appeal nugatory. However, because the applicant had told the trial court it was solvent and had failed to comply with the conditional stay granted there, the Court conditioned the stay on a security deposit securing both parties' interests.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that if the orders sought are not granted the appeal will be rendered nugatory.

Court orders

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  1. 1.Stay of execution of the judgment and decree in Mombasa ELRC Cause No. 186 of 2013 granted
  2. 2.Stay of proceedings in Mombasa Judicial Review Cause No. 5 of 2019 granted
  3. 3.The applicant to deposit the sum of Kshs.36,000,000 into an interest earning account in the joint names of the parties' advocates within thirty (30) days
  4. 4.In the event of non-compliance with the deposit condition, the orders of stay shall stand discharged and the applications deemed dismissed

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (1)

  • STANLEY KANGETHE KINYANJUI v TONY KETER & 5 OTHERS
    [2013] eKLR
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
ELRC Cause No. 186 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

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, "Kenya Marine Fisheries Research Institute v Ezekiel Nyangoya Okemwa (Civil Application 112 of 2019) [2020] KECA 446 (KLR)", Case Analysis (2020). Civil Application No. 112 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/446/eng@2020-08-07

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