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Court of AppealDismissedCivil Application No. 88 of 2020· [2020] KECA 586 (KLR)

Aga Khan University Hospital v Ednah Kemunto Gishore [2020] KECA 586 (KLR)

Court of Appeal
19 June 2020
Martha Karambu KoomeM. K. KoomeMohamed Abdulahi WarsameM. WarsameJMJ. Mohammed
1,643 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 refused to pause an employment discrimination ruling, confirming courts won't stay orders that require nothing to be done or paid.

What this practically means

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Executive summary

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The Aga Khan University Hospital applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the Employment and Labour Relations Court (Onyango, J.) of 21st February 2020 in ELRC No. 105 of 2019, in which Dr. Ednah Kemunto Gishore obtained a declaration that her treatment amounted to discrimination, an order quashing the hospital's letter of 17th June 2019 cancelling her clinical privileges, and costs. The applicant argued the appeal was arguable on the basis that the respondent's claim, arising after she left employment, did not fall within the ELRC's jurisdiction, that clinical privileges were tied to employment and ceased on resignation, and that no constitutional violation or discrimination had been pleaded or proved; it also relied on the alleged disruptive policy impact, citing Nairobi Hospital v Khainga. The respondent opposed, contending her admission rights ran to 31st May 2021 and that the orders were incapable of execution. The Court, in a single judgment of Koome, Warsame and J. Mohammed, JJ.A, restated the twin Rule 5(2)(b) principles from Thande v Housing Finance: arguability and nugatory effect. It accepted that arguable issues existed, notably whether clinical privileges were tied to employment and whether discrimination was pleaded, but cautioned that its view was prima facie only. On nugatory effect, it held that the declaratory order was incapable of execution, following Ndungu Kinyanjui, and that the quashing order caused no prejudice given the respondent's valid privileges and absence of misconduct allegations, distinguishing Nairobi Hospital v Khainga. The application was dismissed with costs to the respondent.

Key legal issues

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01

Twin principles governing stay under Rule 5(2)(b)

Holding

The applicant must show an arguable appeal and that the appeal will be rendered nugatory without stay; both limbs must be satisfied

Reasoning

The court restated the settled two-limb test from Thande v Housing Finance: the jurisdiction is discretionary and requires both arguability and nugatory effect. Having found the applicant failed on the nugatory limb (and not being fully satisfied on arguability beyond a prima facie view), the application failed.

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02

Executability of declaratory orders

Holding

A declaration, being not capable of execution, cannot found a claim of nugatory effect on stay

Reasoning

The court held that one of the orders below was declaratory and thus not capable of execution. Where the court below ordered no party to do or refrain from anything or pay any sum, there is nothing for the Court of Appeal to enforce or restrain by injunction, so the nugatory limb is not met on that order.

p. 2
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Prejudice from the quashing order

Holding

The quashing of the letter cancelling clinical privileges caused no prejudice since the privileges were valid until 31st May 2021 and there were no allegations of misconduct

Reasoning

The court distinguished Nairobi Hospital v Khainga, noting that unlike that case, there were no allegations of professional misconduct or negligence. The respondent had admission rights valid to 31st May 2021 which she continued to exercise, so staying the quashing order would not preserve any legitimate interest of the applicant.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must establish both that the appeal is arguable and that it will be rendered nugatory absent stay
  • A declaratory order is not capable of execution for purposes of a stay application under Rule 5(2)(b)
  • A Rule 5(2)(b) determination on arguability is only prima facie and does not predetermine the appeal

Court orders

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  1. 1.The application for stay of execution under Rule 5(2)(b) was dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Employment Actnot specified (referenced generally)

Cases cited (6)

  • Gabriel Mutova & 2 Others vs. Managing Director Kenya Ports Authority & Another
    2016 eKLR
  • Trusted Society of Human Rights Alliance vs Attorney General & 2 Others
    [2012] eKLR
  • Nairobi Hospital vs. Stanley Ominde Khainga
    [2020] eKLR
  • Ismael Kagunji Thande vs. Housing Finance Kenya Ltd, Civil Application No. Nai 157 of 2006 (unreported)
  • Githunguri vs. Jimba Credit Corporation Ltd. No. 2
    [198] KLR 838
  • Ndungu Kinyanjui vs. Kibichoi Kugeria Services and Another, NAI Civil Application No. 79 of 2007 (unreported)
On appeal from
Employment and Labour Relations Court
ELRC No. 105 of 2019
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, "Aga Khan University Hospital v Ednah Kemunto Gishore [2020] KECA 586 (KLR)", Case Analysis (2020). Civil Application No. 88 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/586/eng@2020-06-19

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