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Court of AppealPartially AllowedCivil Application No. 155 of 2019· [2021] KECA 1051 (KLR)

Ng-cdf Mwea Constituency & 2 others v Isaac Mwendia Muthoni

Court of Appeal of Kenya
29 January 2021
1,328 words in judgment
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The bottom line

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Kenya's Court of Appeal paused an employment award against NG-CDF Mwea, but only after the employer paid the dismissed worker Ksh. 100,000 first.

What this practically means

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Executive summary

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This is a single-judge-panel ruling of the Court of Appeal at Nyeri (Ouko, P, Koome and ole Kantai, JJ.A) on a notice of motion dated 20th September 2019 brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment and decree of the Employment and Labour Relations Court at Nyeri (Nzioka Wa Makau, J) of 30th July 2019 in ELRC Cause No. 247 of 2018. The ELRC had found the respondent's dismissal unlawful and awarded him Ksh. 228,012 in unpaid salary, Ksh. 456,024 as maximum compensation under section 49(1) of the Employment Act, costs and interest. The applicants argued the intended appeal was arguable on two grounds: that they were denied audience at the ELRC despite complying with interim reinstatement orders, and that some remedies awarded were unpleaded. The respondent countered that the appeal was frivolous and that he had been replaced in breach of court orders. Applying the settled two-limb test under Rule 5(2)(b) - arguability and nugatory - the Court held the appeal arguable, since denial of natural justice and unpleaded remedies raise serious questions of law. On the nugatory limb, the Court balanced the respondent's right to survival arising from unlawful termination against the applicants' ability, as a statutory body and its officials, to settle the award. It granted a conditional stay: the applicants were to pay the respondent Ksh. 100,000 within forty-five days, failing which the application for stay would automatically stand dismissed. Costs of the application were to abide the outcome of the appeal. The ruling binds the ELRC and subordinate courts only in respect of the orders actually made; the substantive issues await the full appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal arguable on two issues: whether the applicants were denied audience and whether the awards were pleaded and supported by law

Reasoning

Applying the settled Rule 5(2)(b) principles, the Court identified the denial of audience and the propriety of the unpleaded remedies as serious questions of law capable of forming the basis of a two-judge bench hearing. An arguable appeal need not be one that will succeed; it is enough that it deserves the court's consideration.

p. 2
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The Court granted a conditional stay, requiring part-payment of the decretal sum, balancing the respondent's right to survival against the applicants' position

Reasoning

The Court weighed the respondent's inability to refund the decretal sum against the fact that the 1st applicant is a statutory body capable of settling the award. Because the claim concerned unlawful termination touching the respondent's right to survival, an outright stay was refused in favour of a conditional stay directing part-payment of Ksh. 100,000 within 45 days, failing which the application would stand dismissed.

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, unless stay is granted, a successful appeal will be rendered nugatory
  • An arguable appeal need not be one that must succeed; it suffices that it raises a serious question of law or a reasonable argument deserving consideration

Court orders

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  1. 1.Stay of the judgment and decree of Nyeri ELRC Cause No. 247 of 2018 dated 30th July, 2019 granted on condition that the applicants pay the respondent Ksh. 100,000 as part of the decretal sum within forty-five (45) days of the ruling
  2. 2.In default of payment, the application for stay stands automatically dismissed
  3. 3.Interim status quo order issued on 19th February, 2020 superseded by the conditional stay
  4. 4.Costs of the application to abide the outcome of the appeal
On appeal from
Employment and Labour Relations Court of Kenya at Nyeri
ELRC Cause No. 247 of 2018
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, "Ng-cdf Mwea Constituency & 2 others v Isaac Mwendia Muthoni", Case Analysis (2021). Civil Application No. 155 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1051/eng@2021-01-29

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