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Court of AppealAllowedCivil Application E446 of 2021· [2022] KECA 1066 (KLR)

Kenya Broadcasting Corporation v Kasisi & 11 others

Court of Appeal
7 October 2022
AMA. K. MurgorSKS. ole KantaiKLK. I. Laibuta
2,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal halted the auction of KBC property worth over KShs. 46 million, ruling the broadcaster's appeal raised genuine legal questions worth hearing.

What this practically means

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Executive summary

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The Kenya Broadcasting Corporation sought stay of execution pending an intended appeal against a ruling of the Employment and Labour Relations Court (Monica Mbaru, J.) delivered on 25 November 2021 in ELRC Cause No. 845 of 2017. The ruling had declined the Corporation's injunction and declaratory applications but granted a temporary stay, holding the warrants of attachment and proclamation notices in abeyance for 14 days within which the Corporation was to pay KShs. 39,809,518, failing which execution could proceed. The decree arose from a judgment of 11 November 2020 (Hellen Wasilwa, J.) ordering payment to the claimants per an adopted schedule of payments, with costs and interest; execution targeted immovable property worth approximately KShs. 46,709,444. The Corporation applied to the Court of Appeal under Rule 5(2)(b), arguing that section 47(a) and (b) of the Kenya Broadcasting Corporation Act restricts execution against its property and that the 14-day window had lapsed. The respondents opposed, contending the appeal was not arguable and that stay would deny them the fruits of justice. Applying the settled twin principles - arguability and nugatory-ness - the Court (Murgor, Kantai and Laibuta, JJA) found both limbs satisfied: the grounds were arguable, and execution and sale of the Corporation's immovable assets would irreversibly cripple its broadcasting operations, a matter of profound public interest, and render the appeal futile. The application was allowed, execution proceedings and all consequential orders were stayed, and costs were made costs in the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds in the draft Memorandum of Appeal were arguable, not idle.

Reasoning

The Court read the grounds, affidavits and submissions and concluded the applicant's grievance revolved around the validity and legality of the imminent execution of the decree and the propriety of the impugned Ruling upholding warrants of attachment contrary to section 47 of the Kenya Broadcasting Corporation Act. Those grounds were by all means arguable.

p. 5
02

Nugatory-ness if stay is not granted

Holding

Execution and sale of the applicant's immovable assets would render the intended appeal worthless or futile.

Reasoning

The Court weighed the legal issues in contention, the applicant's statutory broadcasting functions of profound public interest, the substantial sums decreed, and the difficulty of recovering moneys from an amorphous body of 267 decree holders if the appeal succeeded. Attachment and sale would irreversibly cripple the applicant's operations and render the appeal nugatory.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and nugatory-ness if stay is not granted.
  • One arguable point suffices; the applicant need not show the point will succeed.

Court orders

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  1. 1.the applicant's Notice of Motion dated 9th December 2021 is allowed
  2. 2.the execution proceedings arising from the Ruling and Orders of the ELRC Cause No. 845 of 2017 (Monica Mbaru, J.) together with all consequential orders are stayed
  3. 3.costs of the application be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Kenya Broadcasting Corporation Act (Cap. 221)section 47(a) and (b)

Cases cited (3)

  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR

    Twin test for stay: arguable appeal and nugatory-ness

  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others
    [2014] eKLR

    One arguable point suffices; need not show it will succeed

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA p.227

    Definition of 'nugatory'; circumstances of each case

On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Cause No. 845 of 2017 (Formerly HCC No. 719 of 2006)
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, "Kenya Broadcasting Corporation v Kasisi & 11 others", Case Analysis (2022). Civil Application E446 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1066/eng@2022-10-07

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