Cancer Care Kenya Limited v Anita Nzisa Kivulu [2021] KECA 627 (KLR)
The bottom line
#Kenya's Court of Appeal paused an employment award's execution because the employer showed it likely could not recover the money if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal, if successful, would be rendered nugatory unless stay of execution is granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because the draft memorandum raised bona fide issues on justification of the termination, procedure followed, and entitlement to reliefs
The court examined the draft memorandum of appeal and identified determinations by the learned Judge requiring further interrogation, including whether the termination was justified, whether the right procedure was followed, and whether the respondent was entitled to the reliefs awarded. It held these were not idle issues and therefore the first limb of the Rule 5(2)(b) test was satisfied.
Nugatory aspect / substantial loss
The second limb was satisfied because the applicant stated without rebuttal that it could not recover the decretal sum if paid over, and the respondent did not prove ability to restitute
The court found that the applicant had demonstrated, without rebuttal, that execution would cause it irreparable loss since the decretal sum, once paid to the respondent, might be irrecoverable if the appeal succeeded. The respondent offered no proof of her financial capacity to refund the decretal sum, so the appeal would be rendered nugatory without a stay.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted
- In exercising discretion under Rule 5(2)(b), the court balances the respondent's interest as a successful party against the applicant's right of appeal, and may grant conditional stay
Court orders
#- 1.Stay of execution of the judgment of the Employment and Labour Relations Court dated 6th November 2020 granted pending the lodging, hearing and determination of the intended appeal
- 2.Stay conditional on the applicant depositing the decretal sum in an interest-earning account held in the joint names of counsel for both parties within 30 days from the date of the ruling, failing which the stay shall lapse without further orders
- 3.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- E&LRC Cause No. 684 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we reiterate that we are only concerned with the two well-known principles, which are, in any application brought under Rule 5(2)(b) an applicant to succeed must demonstrate the arguability of the intended appeal and its nugatory aspect
it is just and mete to allow the applicant to enjoy the orders of stay pending appeal, on condition that it will deposit the decretal sum in an interest earning account held in the joint names of counsel for both parties, within 30 days from the date of this ruling, failing which, the order of stay granted herein shall lapse without any further orders. Costs will be in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cancer Care Kenya Limited v Anita Nzisa Kivulu [2021] KECA 627 (KLR)", Case Analysis (2021). Civil Application No. E470 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/627/eng@2021-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.