Kenya Revenue Authority v Evelyne Onyango Obondo
The bottom line
#Kenya's Court of Appeal refused to suspend an employee's reinstatement and back pay because KRA had already implemented the orders it wanted stopped.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
All six proposed grounds of appeal were found arguable, their ultimate outcome notwithstanding
The Court restated that an arguable appeal is one that is not frivolous or idle but raises a bona fide issue warranting the Court's interrogation and the opposite party's response; a single bona fide arguable ground suffices. Applying that threshold to the six proposed grounds, including that final orders were issued at an interlocutory stage, the Court was satisfied that all were arguable.
Whether the appeal would be rendered nugatory absent stay
No, because the orders sought to be stayed had already been effected; the application was overtaken by events
The nugatory inquiry asks whether what is to be stayed is reversible, or if not, whether damages would compensate. The respondent's uncontroverted position was that she had already been reinstated, paid her withheld salaries and allowances, redeployed and promoted. Since the applicant itself had effected what it sought to stay, there was nothing left to be rendered nugatory.
Scope of the statutory provisions invoked on the application
Section 27(1) and (2) of the Labour legislation did not fall for consideration; sections 3A and 3B of the Appellate Jurisdiction Act applied only peripherally, with Rule 5(2)(b) as the substantive provision
The Court identified Rule 5(2)(b) of the Court of Appeal Rules as the substantive provision governing the application. Sections 3A and 3B of the Appellate Jurisdiction Act enshrine the overriding objective and were considered only peripherally as donating latitude to the Court, while section 27 of the labour legislation was discounted as inapplicable to an application of this nature.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory limbs; failure on either limb is fatal to the application
- An arguable appeal need not be one that will necessarily succeed; a single bona fide arguable ground suffices
- An appeal is rendered nugatory if what is sought to be stayed is irreversible, or if it is irreversible and damages will not reasonably compensate the aggrieved party
- Relief cannot issue where what is sought to be stayed has already been effected and the application is overtaken by events; there is then nothing to be rendered nugatory
Court orders
#- 1.The application dated 28th February 2017 fails and is dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Cause No. 2141 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Rule 5(2)(b) of the Court of Appeal Rules, following a duly filed notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Evelyne Onyango Obondo", Case Analysis (2021). Civil Application No. 36 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/543/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.