Federation of Kenya Employers v Law Society of Kenya (Civil Application E141 of 2021) [2021] KECA 198 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause the Law Society of Kenya's case against employers, because you cannot stay an order that merely dismisses your objection.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay can issue in respect of an order dismissing a preliminary objection
No. An order of dismissal that directs no party to do anything or refrain from anything is a negative order incapable of execution and cannot be the subject of a stay.
The Court examined the High Court ruling of 17th March 2021 and found it merely dismissed the applicant's preliminary objection with costs, without ordering any party to do or refrain from doing anything. Relying on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga, it held that where there is no positive order capable of execution, there is nothing to stay and the nugatory limb of Rule 5(2)(b) cannot be satisfied. The motion therefore failed in its entirety.
The settled principles governing stay of execution or injunction under Rule 5(2)(b)
The twin principles are an arguable appeal (not necessarily one that must succeed, but not frivolous or idle) and that the appeal would be rendered nugatory absent a stay.
The Court restated the established Rule 5(2)(b) test as summarised in Stanley Kang'ethe Kinyanjui v Tony Ketter & Others, affirming that the applicant bears the burden of establishing both limbs. It applied this framework to the present motion, finding the second limb could not be met because the impugned ruling was a negative order, and accordingly dismissed the application with costs.
Legal principles established
#- An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal that is not frivolous or idle, and secondly that the appeal would be rendered nugatory unless a stay is granted
- A negative order - one that merely dismisses an application and does not order any party to do, refrain from doing, or pay anything - is incapable of execution and cannot be stayed
Court orders
#- 1.The applicant's motion dated 6th May 2021 is dismissed in its entirety with costs
- On appeal from
- High Court of Kenya at Nairobi
- Petition 505 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (inherent/appellate discretion to grant stay of execution or injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Federation of Kenya Employers v Law Society of Kenya (Civil Application E141 of 2021) [2021] KECA 198 (KLR)", Case Analysis (2021). Civil Application No. Nai. E128 of 2021 (Rule 5(2)(b) motion dated 6th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/198/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.