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Court of AppealAllowedNyeri Civil Application No. 35 of 2020· [2020] KECA 449 (KLR)

Kenya National Union of Teachers Nakuru Branch & 2 others v James Mungai Muhia [2020] KECA 449 (KLR)

Court of Appeal
7 August 2020
1,608 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 paused a Ksh.12 million payment and contempt orders against KNUT officials, ruling the appeal worth hearing and the money likely unrecoverable.

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 (Ouko (P), Karanja and Makhandia, JJ.A.) on a motion under Rule 5(2)(b) of the Court of Appeal Rules, 2010 seeking stay of execution of a ruling of Nzioka wa Makau, J. of the Employment and Labour Relations Court at Nyeri delivered on 6th April 2020 in ELRC Cause No. 31 of 2019. The learned Judge had found the applicants, KNUT Nakuru Branch officials, in contempt for breaching a consent order of the Court of Appeal in Nairobi Civil Appeal No. 5 of 2019 requiring payment of the respondent's emoluments, fined each Ksh. 100,000 and made orders touching on payment of about Ksh. 12 million. Applying the twin Rule 5(2)(b) principles, the court found the intended appeal arguable, noting live questions on whether the respondent had in fact been paid and on compliance with the consent order. On nugatory aspect, the respondent gave no evidence to rebut alleged impecuniosity, so recovery of the Ksh. 12 million if paid would be doubtful. On the contempt fine, the court ordered each applicant to deposit Ksh.100,000 in Court within 14 days, failing which the stay would lapse automatically. Stay of execution was granted subject to that condition, with costs of the application to be in the intended appeal. The court deliberately made no definitive findings on the merits, leaving those to the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

Arguability was established on the supporting affidavit and grounds of appeal, including whether the respondent had been paid his emoluments and whether the consent order had been complied with.

Reasoning

The court drew on the supporting affidavit which also contained the grounds of appeal and identified at least one arguable point. It emphasised that a single arguable issue suffices and that an arguable appeal is one that is not frivolous and deserves full argument, citing Joseph Gitahi Gachau v. Pioneer Holdings.

p. 2
02

Nugatory aspect - refund of Ksh. 12,000,000

Holding

The nugatory aspect was demonstrated because the respondent adduced no evidence to rebut the claim of his impecuniosity, making recovery of the money doubtful if the appeal succeeded.

Reasoning

The impugned ruling had two aspects: a contempt fine and payment of Ksh. 12 million. Applying International Laboratory for Research on Animal Diseases v Kinyua, the court held the onus shifted to the respondent to rebut impecuniosity with evidence. He failed to do so, so payment could be irrecoverable, satisfying the nugatory test.

p. 2
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The contempt fine

Holding

Rather than staying the fine outright, the court ordered each applicant to deposit Ksh.100,000 in Court within 14 days, failing which the stay orders would be vacated automatically.

Reasoning

The court recognised the difficulty in recovering money paid to the Government as a fine if the order for payment is later reversed. It therefore structured a conditional order preserving the position of both parties pending the appeal, while leaving the propriety of the conviction and sentence for determination in the appeal.

Legal principles established

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  • An application for stay under Rule 5(2)(b) must satisfy the twin principles of arguability and the nugatory aspect.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and ought to be argued fully, and one arguable issue is enough.
  • Where impecuniosity is alleged as the basis of the nugatory aspect, the burden shifts to the respondent to rebut the claim by adducing sufficient evidence.
  • An appeal will be rendered nugatory where what is sought to be stayed is irreversible or not reasonably compensable by damages.

Court orders

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  1. 1.Each applicant to deposit Ksh.100,000 in Court within 14 days from the date of the Ruling, failing which the stay orders will be automatically vacated and the respondent free to execute
  2. 2.The deposited money to be held in Court pending hearing and determination of the intended appeal
  3. 3.Stay of execution of the ruling and orders of the ELRC at Nyeri delivered on 6th April 2020 granted as prayed, subject to the deposit condition
  4. 4.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)

Cases cited (3)

  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others
    [2013] eKLR
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
Employment and Labour Relations Court at Nyeri
ELRC Cause No. 31 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Teachers Nakuru Branch & 2 others v James Mungai Muhia [2020] KECA 449 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/449/eng@2020-08-07

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