Edith Kathure Munyua v Moi Teaching & Referral Hospital & 3 others [2021] KECA 1055 (KLR)
The bottom line
#The Court of Appeal paused collection of a Sh1.5 million employment award against Moi Teaching & Referral Hospital until the appeal and cross-appeal are decided.
What this practically means
#Executive summary
#Key legal issues
#Standing of a respondent to apply under Rule 5(2)(b)
A respondent in an appeal may bring a Rule 5(2)(b) application; the appellant's notice of appeal suffices to clothe the Court with jurisdiction, and the rule does not require the applicant to have filed a notice of appeal.
The appellant objected that the applicants had not filed a notice of appeal and were guilty of inordinate delay in filing the cross appeal. The Court noted that the appellant's own notice of appeal lodged on 1st August 2019 was on record, and that on the basis of that notice the Court was clothed with jurisdiction under Rule 5(2)(b). Nothing in the rule prevents a respondent from applying under it, so the applicants had standing.
Arguability and nugatory-ness test
The twin principles governing a Rule 5(2)(b) application are arguability of the appeal and the nugatory risk; an arguable appeal need not be one that will necessarily succeed.
Applying the settled principles in Ishmael Kagunyi Thande vs. Housing Finance Company Limited, the Court considered the rival contentions in the appeal and cross appeal and held both arguable. On the nugatory limb, the appellant had demanded Kshs.8,300,047.89 including compound interest and threatened attachment and auction; she did not rebut the claim that she lacked ability to refund if the cross appeal succeeded.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court that the intended appeal is arguable and that, unless the orders sought are granted, the appeal if successful will be rendered nugatory.
- A respondent in an appeal has standing to apply to the Court under Rule 5(2)(b); nothing in the rule confines the remedy to appellants or requires the applicant to have lodged a notice of appeal of their own.
Court orders
#- 1.Execution of the judgment and decree of the ELRC given on 18th July 2019 in Kisumu ELRC Cause No. 359 of 2016 stayed pending the hearing and disposal of the appeal and cross appeal
- 2.The applicants shall deposit into Court the amount of Kshs.1,503,680.00 within 30 days from the date of delivery of the Ruling, failing which the order of stay shall automatically be discharged and the application dated 26th August 2020 shall stand dismissed with costs to the appellant
- 3.The costs of the application shall abide the outcome of the appeal and cross appeal
- On appeal from
- Employment & Labour Relations Court at Kisumu
- Kisumu ELRC Cause No. 359 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Edith Kathure Munyua v Moi Teaching and Referral Hospital & 3 others [2022] KEELRC 393 (KLR)[2022] KEELRC 393 (KLR)30 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Edith Kathure Munyua v Moi Teaching & Referral Hospital & 3 others [2021] KECA 1055 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. 212 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1055/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.