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Court of AppealDismissedCivil Appeal (Application) No. NAI 184 of 2019 (UR 170/2019)· [2020] KECA 543 (KLR)

Abercombie & Kent Limited v John Wanjau Maina [2020] KECA 543 (KLR)

Court of Appeal
10 July 2020
ASAsike-MakhandiaPKP. O. KiageFSF. Sichale
1,997 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause an employment case because the employer couldn't show the employee would be unable to refund any money paid.

What this practically means

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Executive summary

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The applicant, Abercrombie & Kent Limited, moved the Court of Appeal under Rule 5(2)(b) for stay of further proceedings in ELRC Cause No. 832 of 2014 pending an intended appeal against a ruling of Ndolo, J delivered on 5 April 2019, in which she held that the dispute had been formally settled for Kshs. 848,366.47 pursuant to a consent recorded before Nduma Nderi, J on 21 June 2017. The applicant argued no consent or meeting of minds existed, that it was denied a hearing on the merits contrary to natural justice, and that paying the sum would prejudice it. The respondent countered that a consent had been recorded with only interest and costs outstanding, and that he could repay the amount if the appeal succeeded. Applying the settled twin test under Rule 5(2)(b), the court found the appeal arguable: the parties' divergent positions on whether a consent was reached raised a bona fide point, and the absence of a draft memorandum of appeal was not fatal per Somak Travels v Aganyo. However, on the nugatory limb, the respondent's unchallenged deposition that he was a businessman running an insurance agency and not a man of straw shifted and discharged the evidential burden, so the appeal would not be rendered nugatory. Failing one limb, the application was dismissed with costs on 10 July 2020.

Key legal issues

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01

Whether the intended appeal was arguable despite the absence of an annexed draft memorandum of appeal

Holding

The omission was curable; the applicant's pleading of a dispute over the existence of the consent demonstrated an arguable point.

Reasoning

The court adopted Somak Travels v Gladys Aganyo, holding that failure to annex a draft memorandum is not fatal if grievances are sufficiently set out on the face of the application. Here the applicant pleaded at length that no consent was recorded and there was no meeting of the minds. The parties' divergent positions on whether a consent was reached in itself demonstrated an arguable appeal worthy of consideration.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay was not granted

Holding

It would not; the respondent's unchallenged deposition that he could repay the sum discharged the shifted evidential burden.

Reasoning

Applying Africa Eco-camps, the court held the applicant bore a duty to prove the respondent could not repay, softened by a shift of evidential burden to the respondent once reasonable fear is expressed. The respondent deposed that he was a businessman running an insurance agency and not a man of straw; that assertion was unchallenged, so the appeal would not be nugatory.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin limbs: an arguable appeal and that the appeal would be rendered nugatory absent stay; failing one limb defeats the application.
  • Omission to annex a draft memorandum of appeal to a Rule 5(2)(b) application is not fatal where the applicant has sufficiently set out its grievances on the face of the application.
  • Where an applicant expresses a reasonable fear that a respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show his resources; an unchallenged assertion of means discharges that burden.

Court orders

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  1. 1.The application for stay of proceedings under Rule 5(2)(b) is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (5)

  • Attorney General v Okiya Omtata Okoiti & Another
    (2019) eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
  • Somak Travels Limited v Gladys Aganyo
    (2016) eKLR
  • Africa Eco-camps Limited v Exclusive African Treasures Limited
    (2014) eKLR
  • National Credit Bank Ltd v Aquinas Francis Wasike and another
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC No. 832 of 2014
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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Later judgments citing this (5)

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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, "Abercombie & Kent Limited v John Wanjau Maina [2020] KECA 543 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. NAI 184 of 2019 (UR 170/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/543/eng@2020-07-10

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