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Court of AppealDismissedCivil Application E534 of 2021· [2022] KECA 868 (KLR)

University Academic Staff Union (UASU) Executive, Kenyatta University Chapter & another v Kinoti & 3 others

Court of Appeal
22 July 2022
HOHANNAH OKWENGUSKS. OLE KANTAIAMA. MBOGHOLI MSAGHA
1,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause fresh Kenyatta University union elections, confirming that a strong appeal alone is not enough to get a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, ole Kantai and Mbogholi-Msagha, JJA) on a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of the Employment & Labour Relations Court (Rika, J) of 20 August 2021 in Petition No. E093 of 2021 consolidated with Petition No. E043 of 2021. The ELRC had declined the orders sought in E093 of 2021, allowed E043 of 2021, and directed the updating of the UASU-Kenyatta University Chapter voters' register and fresh elections within 60 days. The applicants, the Chapter's Executive and Secretary, sought to stay those orders pending appeal, contending the appeal was arguable and would be rendered nugatory, that the orders created a leadership vacuum, and that contempt proceedings had been initiated against them for failing to organise the elections. The court noted the motion was connected to Civil Application No. E498 of 2021, decided the same day, in which identical issues were raised and in which the applicants had been respondents but did not participate. Counsel for the applicants conceded the issues were identical. Applying Multimedia University v Naituli and Kinyanjui v Ketter, the court held that both twin requirements of arguability and the nugatory aspect must be satisfied; the applicants met only arguability. Finding no new issue justifying departure from its ruling in E498 of 2021, the court dismissed the motion with costs. The ruling is to be read mutatis mutandis with the E498 of 2021 ruling.

Key legal issues

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01

Twin requirements under Rule 5(2)(b)

Holding

A motion under Rule 5(2)(b) fails where the applicant demonstrates only arguability and not that the appeal would be rendered nugatory.

Reasoning

Relying on Multimedia University v Naituli and Kinyanjui v Ketter, the court reaffirmed that both arguability and the nugatory aspect must be satisfied. The applicants conceded their motion raised identical issues to E498 of 2021, in which the court had already found only arguability was met. No new issue justified departing from that position.

p. 2
02

Identical successive applications

Holding

Where a later motion raises issues identical to those already determined in a prior application, the court will not depart from its earlier position absent new issues.

Reasoning

The applicants were respondents in Civil Application E498 of 2021, which concerned the same ELRC orders and identical supporting affidavit. They did not participate in that application. The court held no new issue was raised to justify a different outcome, and read the two rulings mutatis mutandis.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the twin requirements of arguability and the nugatory aspect; satisfying only one is insufficient.

Court orders

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  1. 1.The applicants' motion for stay of execution is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Multimedia University & Another vs. Professor Gitile N. Naituli
    (2014) eKLR

    Twin requirements of arguability and nugatory aspect under Rule 5(2)(b)

  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    (2013) eKLR

    Twin requirements of arguability and nugatory aspect under Rule 5(2)(b)

On appeal from
Employment & Labour Relations Court of Kenya at Nairobi
Petition No E093 of 2021, Consolidated with Petition No E043 of 2021
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, "University Academic Staff Union (UASU) Executive, Kenyatta University Chapter & another v Kinoti & 3 others", Case Analysis (2022). Civil Application E534 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/868/eng@2022-07-22

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